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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER RYAN
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
and
P & D Rigging & Crane Hire Pty Ltd
(B2016/1272)
Melbourne
1.08 PM, MONDAY, 19 DECEMBER 2016
PN1
THE COMMISSIONER: Mr Boncardo, you're representing the CFMEU?
PN2
MR P BONCARDO: I am, Commissioner, yes, and for the Commission's benefit I am an employee of the CFMEU.
PN3
THE COMMISSIONER: Yes, and Ms Mansini, you're representing AMMA?
PN4
MS A MANSINI: Yes. Thank you.
PN5
THE COMMISSIONER: Good. How are we going to play this out today?
PN6
MR BONCARDO: Commissioner, I was proposing to call Ms Maloney. I have a couple of additional questions to ask her in‑chief. They flow principally from Mr Bradford's statement, which was received by us on Saturday night. I don't anticipate that will take very long. I am not sure whether she is required for cross‑examination. I had a couple of questions for Mr Bradford, and then I was happy to move into oral submissions.
PN7
THE COMMISSIONER: Yes. How do you see it playing out, the same way?
PN8
MS MANSINI: Yes, thank you.
PN9
THE COMMISSIONER: Do you want to cross‑examine Ms Maloney?
PN10
MS MANSINI: Yes, thank you.
PN11
THE COMMISSIONER: And do you want to lead Mr Bradford?
PN12
MS MANSINI: No. I have no questions of Mr Bradford in‑chief.
PN13
THE COMMISSIONER: All right, then we'll start with Ms Maloney.
PN14
MR BONCARDO: Thank you, Commissioner. I call Jean Maloney.
PN15
THE ASSOCIATE: State your full name and address, please?
MS MALONEY: Jean Maloney, 500 Swanston Street, Carlton.
<JEAN MALONEY, AFFIRMED [1.10 PM]
EXAMINATION-IN-CHIEF BY MR BONCARDO [1.11 PM]
PN17
MR BONCARDO: Madam, your name is Jean Maloney?‑‑‑That's correct.
PN18
You're a legal officer employed by the Victorian and Tasmanian Branch of the Construction and General Division of the CFMEU?‑‑‑That's correct.
PN19
You have made a statement in these proceedings?‑‑‑I have.
PN20
It is a statement of some 21 paragraphs?‑‑‑Yes.
PN21
Dated 12 December?‑‑‑Yes.
PN22
And it includes a number of annexures which go from JM1 to JM6?‑‑‑Yes.
PN23
Are there any amendments you would like to make to that statement, madam?‑‑‑Yes, at paragraph 15, it says on 18 November 2016 I had a further meeting with Mr Bradford. I just want to clarify that wasn't a meeting; it was a telephone conciliation.
PN24
Thank you, madam. With the exception of that amendment, is the statement true and correct to the best of your knowledge and belief?‑‑‑Yes.
PN25
Thank you. Commissioner, I tender Ms Maloney's statement and the six annexures attached to it.
PN26
THE COMMISSIONER: And I'm changing paragraph 15 to delete the words, "meeting," and putting in "telephone - - -?‑‑‑"Telephone conference." Conducted by the Fair Work Commission.
I'll mark the witness statement of Jean Maloney as exhibit A1.
EXHIBIT #A1 WITNESS STATEMENT OF JEAN MALONEY DATED 12/12/2016 PLUS SIX ANNEXURES
*** JEAN MALONEY XN MR BONCARDO
PN28
MR BONCARDO: Ms Maloney, have you had reason to read Mr Douglas Anthony Bradford's statement which has been filed in these proceedings?‑‑‑I have briefly, yes.
PN29
Madam, I'm going to ask you some questions in respect to some correspondence that has flowed between you and Mr Bradford in the last few days?‑‑‑Yes.
PN30
Can I start perhaps by showing you a document?‑‑‑Do you have a copy - I might take a copy of Mr Bradford's - - -
PN31
THE COMMISSIONER: Well you haven't been offered it yet, so don't ask as the witness. You're not an advocate at the moment?‑‑‑Sorry.
PN32
MR BONCARDO: I'm sure she'll get used to it, Commissioner.
PN33
THE COMMISSIONER: They never do.
PN34
MR BONCARDO: Madam, can you look at that document and tell me what that is?‑‑‑This document dated 16 December? This is a letter that I wrote in response to a letter I received on 15 December from Mr Bradford.
PN35
Commissioner, I tender the letter of 16 September (sic) sent from Ms Maloney.
PN36
THE COMMISSIONER: Are you going to leave the copy with the witness, or do you want me - - -?
PN37
MR BONCARDO: I was going to give one to you, Commissioner.
PN38
THE COMMISSIONER: Then you want this marked, do you?
PN39
MR BONCARDO: Yes, Commissioner.
PN40
THE COMMISSIONER: Have you got a copy of this?‑‑‑I do. It's actually an annexure to the witness statement of Tony Bradford's. I'm not sure if that assists the Commission.
*** JEAN MALONEY XN MR BONCARDO
PN41
Which annexure?
PN42
MR BONCARDO: It's annexure DAB8, Commissioner.
PN43
THE COMMISSIONER: And you want it marked separately?
PN44
MR BONCARDO: Yes.
THE COMMISSIONER: I'll mark the letter dated 16 December 2016 from Jean Maloney to Mr Bradford as exhibit A2.
EXHIBIT #A2 LETTER FROM JEAN MALONEY TO MR BRADFORD DATED 16/12/2016
PN46
MR BONCARDO: Thank you, Commissioner. Madam, the letter that sent on 16 September (sic), I understand that you received a reply to that letter on 16 September (sic)?‑‑‑I did.
PN47
I think for the Commission's benefit, that reply is DAB9 to Mr Bradford's witness statement. Madam, did you have reason to send a response to Mr Bradford's - - -
PN48
THE COMMISSIONER: Can I just interrupt you there?
PN49
MR BONCARDO: Yes.
PN50
THE COMMISSIONER: Is being addressed as "madam" appropriate?‑‑‑I don't mind.
PN51
You don't mind? Fine.
PN52
MR BONCARDO: I apologise, Commissioner - force of habit. It's very archaic. I'm not sure why everyone does it.
PN53
THE COMMISSIONER: No, it's archaic, and I'm very conscious of just making certain that language is used which - - -
PN54
MR BONCARDO: Which is appropriate for the 21st Century?
*** JEAN MALONEY XN MR BONCARDO
PN55
THE COMMISSIONER: No, not at all. It could be highly appropriate. It's, does the witness understand the term being used, and is the witness comfortable with it.
PN56
MR BONCARDO: Certainly.
PN57
THE COMMISSIONER: I refer to some people as "madam" in some courts, and you are describing an occupation rather than addressing them just as a person.
PN58
MR BONCARDO: Yes. Ms Maloney, did you provide any response to Mr Bradford's 16 December letter?‑‑‑Yes.
PN59
How did you provide that response?‑‑‑There was a letter sent on the 19th, dated the 19th.
PN60
And that is today?‑‑‑That's today, yes.
PN61
I'll show you a document, madam. Could you identify that document for me, please?‑‑‑It's a letter dated 19 December in response to a letter sent to me by Mr Bradford.
PN62
Did you send that correspondence to Mr Bradford?‑‑‑That was sent to Mr Bradford, yes.
PN63
When was it sent?‑‑‑That was sent this morning.
PN64
I tender the letter from Jean Maloney to Mr Bradford dated 19 December.
PN65
THE COMMISSIONER: I'll mark the letter dated 19 December 2016 from - well how long is the letter?
PN66
MR BONCARDO: It's a page, Commissioner.
PN67
THE COMMISSIONER: It doesn't say who it's from. Ms Maloney, you identify that this is your letter?‑‑‑It's my letter. It should have a signature - - -
PN68
Is the one page the sum total of the letter?‑‑‑Yes.
*** JEAN MALONEY XN MR BONCARDO
Okay. I'll mark the one‑page letter dated 19 December to Mr Bradford as exhibit A3.
EXHIBIT #A3 ONE‑PAGE LETTER FROM JEAN MALONEY TO MR BRADFORD, DATED 19/12/2016
PN70
THE COMMISSIONER: Just in relation to exhibit A3, how was it sent?‑‑‑It was sent by email.
PN71
As an attachment?‑‑‑As an attachment, yes.
PN72
So it's a, what, PDF attachment to an email?‑‑‑That's right.
PN73
You don't have the email?‑‑‑No. I could get it.
PN74
What time was it sent?‑‑‑Approximately - about 9 o'clock, I think, around that time. I had my secretary send it because I was not in the office. I was on my way in the office.
PN75
Ms Mansini, have you received this?
PN76
MS MANSINI: Yes, I have. Thank you, Commissioner.
PN77
THE COMMISSIONER: Good.
PN78
MR BONCARDO: Ms Maloney, in your letter of 16 December, and again in your letter of 19 December, you offered Mr Bradford to attend a meeting with you this week, recall that?‑‑‑Yes.
PN79
Have you received any positive response to that request?‑‑‑No.
PN80
That's the supplementary evidence‑in‑chief, Commissioner.
THE COMMISSIONER: Thank you.
CROSS-EXAMINATION BY MS MANSINI [1.20 PM]
*** JEAN MALONEY XXN MS MANSINI
PN82
MS MANSINI: Ms Maloney, I'm just going to ask you a few questions about your evidence. At paragraph 2 of your statement you say you're a legal officer. Can you just describe what your qualifications exactly are?‑‑‑I did a law degree and I did a Leo Cussen Practical Legal Training - I don't know the technical name of it - to be admitted to the Supreme Court.
PN83
So you are an officer of the court?‑‑‑Yes.
PN84
And you will understand your obligations to give your evidence today then truthfully to this Commission?‑‑‑That's right.
PN85
What's been your involvement in these negotiations, the subject of the P & D bargaining?‑‑‑I would assist Peter Booth with attending meetings and assist him with drafting correspondence between the parties, and yes, as I said, attend some meetings with him.
PN86
At what stage or on about what date did you get involved in this negotiation?‑‑‑I attended the Commission conciliation on 28 September. I took the matter over from a colleague, and that was when I got involved on the 28th.
PN87
Of September?‑‑‑Yes.
PN88
You said you'd seen a copy of Mr Bradford's statement that he filed in these proceedings, that's correct?‑‑‑Mm‑hm.
PN89
Are you aware that he says received them when you first tabled a draft agreement on 27 June 2016?‑‑‑Yes.
PN90
Do you know if the CFMEU still seeks that same agreement?‑‑‑Yes, that's the position. I don't think the position - I'm not sure. I'm not sure.
PN91
Would you like me to show you a copy of that agreement and you can confirm?‑‑‑Yes.
PN92
It's actually attached to your statement, so do you have a copy of your annexures there with you?‑‑‑Is it JM1?
*** JEAN MALONEY XXN MS MANSINI
PN93
Correct.---My knowledge is the position hasn't changed since I was involved in negotiations. The terms of that agreement are still being sought.
PN94
In exactly those terms?‑‑‑That's correct.
PN95
No modifications to the claims at all by the CFMEU?‑‑‑We've considered the claims, but in substance, no.
PN96
I'm asking about your claims, not what you've considered. Have the CFMEU's claims changed at all?‑‑‑No.
PN97
Since 27 June?‑‑‑I can't tell you about 27 June. I can tell you from 28 September when I got involved, they haven't changed.
PN98
And it's the same as that agreement exactly, that's at your JM1?‑‑‑Yes.
PN99
You say in a number of places in your evidence that the members endorse these claims?‑‑‑Yes.
PN100
Do you ever have discussions with the members yourself?‑‑‑Not me personally, no. Peter Booth will have discussions with the members. All people in the executive will have discussions with the members.
PN101
When you say that the members have endorsed the position of the CFMEU, what exactly have they said?‑‑‑I'm not at the meetings where Peter will attend, but he'll instruct me of what members have said to him.
PN102
And what has he instructed you in your role as his legal officer that the members have said to him?‑‑‑That he's put various positions to them. The most recent one I can recall is that following the telephone conference with the Commission, in my mind there were two issues that I thought that members might concede as an offset with the wages, and I took them back to the executive and Peter Booth and he said to me that the members would not accept a wage of 3 per cent, and they would not accept the four‑hour casual clause, and that the Incolink clause was unable to be changed because of the Incolink deed. So they told me directly that members wouldn't move on those particular issues.
PN103
But the CFMEU hasn't moved on any of the issues that are attached to your JM1 is the evidence you've just given?‑‑‑Yes, so I went to Peter and I said would the members move on these issues, and he said no, they wouldn't.
*** JEAN MALONEY XXN MS MANSINI
PN104
Did he tell you why?‑‑‑He did actually and I can't recall the reason. The four‑hour issue, he gave me an explanation of how practically it works on site, but as you know, I'm a solicitor - you know, it's a bit in one ear, out the other, unless I need to really retain it. So he did explain it to me.
PN105
And of all the other claims that feature in this document attached at your JM1, which is quite lengthy - it has printed every second page but it's numbered strangely, as sometimes these documents are, up to 87 of 69 - so I think there's about 87 pages worth of claims here?‑‑‑Mm‑hm.
PN106
Is there any reason why the CFMEU hasn't revisited any of those other claims, why it pursues them in identical fashion?‑‑‑We haven't been asked to.
PN107
Can you tell me how many other companies in this industry, in the crane industry, you're involved in bargaining for?‑‑‑I haven't been involved, but I've done protected action ballot applications for Boom Logistics, which I think is a mobile crane, and Premier Cranes, I did the application for those. I might have sent an email for Premier Cranes - yes, there's a lot - there's a lot of enterprise agreements.
PN108
The Premier Cranes application was listed at the same time as this proceeding today.---That's right.
PN109
What was the reason why that application's been withdrawn?‑‑‑Because we reached an agreement.
PN110
On what basis?‑‑‑The parties reached an agreement.
PN111
Were you involved in the discussion that led to that agreement being reached?‑‑‑No.
PN112
Do you know the terms upon which that agreement were reached?‑‑‑No.
PN113
Are you familiar with what Mr Booth might have told Premier Cranes about the agreement that needed to be reached in order to withdraw this application?
PN114
MR BONCARDO: I object to the question.
*** JEAN MALONEY XXN MS MANSINI
PN115
THE COMMISSIONER: I'm not going to allow it anyway. That's speculation - mind reading.
PN116
MS MANSINI: I'm asking this witness to give evidence about her direct instructions from Mr Booth. She says she advises him.
PN117
THE COMMISSIONER: No, but you didn't ask a question about direct instructions. You asked for a state of mind. Just re‑phrase the question and it might be okay.
PN118
MS MANSINI: Did Mr Booth give you instructions about the basis on which the PABO could be withdrawn in relation to the content of the agreement that would need to be agreed?‑‑‑No, he said the parties have reached an agreement, we don't have to go for protected action anymore.
PN119
Do you know why Mr Booth is not giving evidence here today?‑‑‑Yes. His sister passed away from cancer and he's at her funeral.
PN120
However, he never filed a statement in these proceedings. You never intended that he would give evidence in these proceedings two‑and‑a‑half weeks ago?‑‑‑I think he was going to give evidence at the Premier Cranes - I think so. But his sister was very sick and there was an issue about whether or not he would be able to attend and what date it would be listed, and he didn't know when the funeral was going to be - she's been quite sick for some time and every day it's been sort of a bonus day, if that makes sense.
PN121
In a number of places in your evidence and in your statutory declaration in support of this proceeding, you say the parties in this matter are at an impasse. Do you stand by that position?‑‑‑Yes. The parties cannot agree on a wage - wages is the major - in my mind, the wages and obviously the code issue, that's at an impasse.
PN122
Have you had any meetings with the company since 2 December this year?‑‑‑I've asked to meet with Mr Bradford and he hasn't responded positively to that request.
PN123
When did you ask him to meet?‑‑‑I asked him in the letter dated the 16th.
PN124
And that was in response to his good faith bargaining concerns notice addressed to you?‑‑‑That was in response to that letter, yes. I asked for a meeting.
*** JEAN MALONEY XXN MS MANSINI
PN125
So after you received the good faith bargaining concerns notice from Mr Bradford, you decided to offer him another meeting?‑‑‑That's correct.
PN126
I have no further questions of this witness.
PN127
THE COMMISSIONER: Thank you. Any re-examination?
PN128
MR BONCARDO: Nothing arising, Commissioner.
PN129
THE COMMISSIONER: Ms Maloney, the code is mentioned in the correspondence between the parties and it's mentioned in the submissions that have been made. To the extent that you've been involved in the direct negotiations around the terms of the enterprise agreement that's being proposed by the union, has anything been put to you or to the union as to which clauses in JM1 have to be changed to make the agreement code‑compliant?‑‑‑Mr Bradford gave me a table that I'd seen before. We've received it from a couple of companies, and it identifies particular clauses and how they may offend the code, but since the code's been passed they have sent me nothing in relation to how the proposed agreement would offend the now enacted code.
PN130
So if you're talking about a document from Mr Bradford about the code, which code was that referring to?‑‑‑The proposed code.
PN131
Which is - - -?‑‑‑Which is now the enacted 2016 building - whatever it's called.
PN132
Has anything been done since the 2016 code has been issued by the Minister?‑‑‑Anything done by who?
PN133
The respondent in this matter to identify what they want changed in the agreement?‑‑‑No. They haven't identified the clauses that would offend the now 2016 enacted code, they haven't.
PN134
Thank you. Does anything arise out of the questions I've asked the witness that either want to explore with the witness?
PN135
MR BONCARDO: No, Commissioner.
PN136
MS MANSINI: No, thank you.
*** JEAN MALONEY XXN MS MANSINI
THE COMMISSIONER: Thank you for your evidence. You're excused.
<THE WITNESS WITHDREW [1.31 PM]
PN138
MR BONCARDO: That's the applicant's case, Commissioner.
PN139
THE COMMISSIONER: Thank you.
PN140
MS MANSINI: Thank you. I've just asked my colleague to ask Mr Bradford to attend the court room.
PN141
THE COMMISSIONER: Thank you.
PN142
THE ASSOCIATE: State your name and address, please?
MR BRADFORD: Douglas Anthony Bradford, care of Level 14, 55 Colin Street, Melbourne.
<DOUGLAS ANTHONY BRADFORD, SWORN [1.32 PM]
EXAMINATION-IN-CHIEF BY MS MANSINI [1.32 PM]
PN144
MS MANSINI: Tony, I'm just going to ask you a few questions about your witness statement, but firstly I'll get you to confirm the document that you've filed in relation to these proceedings. Do you have a copy of that statement with you that you've prepared?‑‑‑I do.
PN145
We've got a copy here with annexures which might be useful. Would you like us to hand up a copy?‑‑‑Sure, that would be helpful, yes.
PN146
Commissioner, do you have a copy of this document, or would you like us to hand you it?
PN147
THE COMMISSIONER: I've got - is this the documents that's filed?
PN148
MS MANSINI: Yes.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN149
THE COMMISSIONER: I've got them.
PN150
MS MANSINI: Okay. In the folder that's just been handed to you, can you confirm there's a statement that you've prepared, numbered paragraphs 1 to 43, and annexures DAB1 to DAB11?‑‑‑Yes, that appears all to be there.
PN151
Is that the evidence you're prepared to give in these proceedings to this Commission?‑‑‑Yes, I wonder if I could just make one clarification to item 38, paragraph 38 of my statement?
PN152
Yes?‑‑‑It refers to the Longford gas conditioning plant. That's a specific project that Longford - which construction has just been completed, and P & D Cranes were working on that in the early stages. However, it's now approaching the hook‑up and commissioning stage, which P & D Cranes will be involved in, with the existing gas plant at Longford. So P & D Cranes are engaged by one of the contractors who do retrofit work - they're Wood Group PSN - so the reference to Longford gas conditioning plant probably should just be the Longford gas plant, to be more accurate.
PN153
So you'd like to amend paragraph 38 to remove the word "conditioning" from that second line?--That's correct. I think that's more accurate.
PN154
And otherwise are you happy to swear to the truth of this evidence?‑‑‑I am.
PN155
Commissioner, I just seek to tender that statement of Mr Douglas Anthony Bradford along with the annexures.
THE COMMISSIONER: I'll mark the witness statement of Douglas Bradford comprising 43 paragraphs and 11 attachments as exhibit R1.
EXHIBIT #R1 WITNESS STATEMENT OF DOUGLAS BRADFORD COMPRISING 43 PARAGRAPHS AND 11 ATTACHMENTS
PN157
MS MANSINI: Just a couple of questions, Commissioner, arising from the evidence of Ms Maloney, so if it pleases the Commission I would just ask a few questions?
PN158
THE COMMISSIONER: Yes.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN159
MS MANSINI: Mr Bradford, we've just heard some evidence from Ms Maloney in relation to these proceedings, but can you tell me in your own words what was the outcome of the other proceedings that were listed for hearing today and then withdrawn in Premier Cranes?
PN160
MR BONCARDO: I object to the question. I'm not sure how outcomes in other proceedings are at all relevant to whether the applicant is genuinely trying to reach agreement in respect to this company.
PN161
THE COMMISSIONER: Given that the basic underlying allegation is pattern bargaining, and pattern bargaining by definition has to relate to two or more employers, then the answer is yes, it is relevant.
PN162
MR BONCARDO: If the Commission pleases.
PN163
MS MANSINI: Mr Bradford, you are free to answer the question.
PN164
THE WITNESS: Certainly. Yes, I've been involved in providing advice to Premier Cranes & Rigging Pty Ltd, and they were initially opposing this protected action - well a protected action ballot order in similar circumstances to the current matter. They advised on Wednesday of last week - I'm not sure what the date was - that they had decided to, after a conversation with their shop steward, to go in for a meeting at the union office on Thursday of last week, and they reported to us after that meeting. They came to the AMMA office and reported the outcome of that meeting. I think the people involved in that meeting were the assistant secretary of the CFMEU - I think his first name was Elias, I'm not sure of his second name - Kane Paterson and Peter Booth. They were strongly encouraged to sign the pattern agreement, and when they came into our office they indicated that they were of a mind to sign the pattern agreement, which is the usual format - like, people are invited to attend the CFMEU office, sign the agreement; they make appointments to do that. They reported that they did sign that. I was obliged to provide advice to them that there are a couple of prerequisites they needed to bear in mind, such as there needed to be a proper access period, a flagging of a vote at the end of that access period, documentation distributed to the employees at the start of the access period, and then a properly constructed vote. Our advice was well, if you're going to sign a document it should be like signing an agreement in‑principle, subject to the processes of the Act being followed more directly. My understanding was that's not how it necessarily works. They go and sign the agreement, and I guess the paperwork arising from the lodgment will be interesting to look at.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN165
MS MANSINI: Thanks, Mr Bradford. An exhibit was handed up this morning. It's been marked in these proceedings as exhibit A3 and I'll hand a copy to you, if the associate doesn't mind passing a copy. This is a letter dated today's date and addressed to you?‑‑‑Thank you.
PN166
Have you read that letter that's been addressed to you?‑‑‑I have, yes.
PN167
At paragraph 3 there it talks about a notion that you cannot meet this week because you'll be preparing for industrial action: "conveys a miscomprehension on your part about the Fair Work Act operating. Can you just explain - I understand this is in response to a letter you've written to the CFMEU saying that you couldn't meet while you're preparing for industrial action, which is annexed to your statement - but can you explain how you would respond to that paragraph 3 that I've just read out to you?‑‑‑Yes. Clearly, industrial action can't occur until the protected action ballot order proceeds, so I meant preparing for the hearing. We're available to meet after this hearing. It's been quite a bit of detail to attend to. So I didn't mean industrial action. I meant for this hearing.
PN168
But you've previously said that you're not available because you're preparing to respond to this proceeding, is that correct?‑‑‑Well yes, I was preparing for this hearing - yes.
PN169
There has been some discussion in your evidence and in Ms Maloney's statement - have you read Ms Maloney's statement, I should ask first?‑‑‑Yes.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN170
There's been some discussion in your evidence and in Ms Maloney's statement about the building code, and in particular the 2016 code that was introduced on 2 December. Have you had an opportunity to assess the CFMEU's draft agreement against the new building code?‑‑‑That process is currently in train. We have a person in Perth who specialises in those assessments. There's a couple of complicating factors in relation to that. One is, the only document we have currently, which I refer to in my statement as the first pattern agreement, we understand is not compliant with the 2013 code. So other crane companies went through a process of having that signed off and lodged only to find that it breached the 2013 code, and then they signed a subsequent agreement, and there's about 44 of these - I've provided that information to the applicant and to the Commission itself - where there was simply another agreement lodged after that with about 44 crane companies, which was allegedly code‑compliant with 2013 code but not the 2014 code, and we doubt that it's compliant with the 2016 code, although we're currently doing a proper analysis of that at the moment. A lot of the discussion with the CFMEU earlier was about the code. I mean, I know the 3 per cent versus 4 per cent was an issue, but primarily for the company I was representing the issue was compliance with the building code. As I say in my statement, there's a requirement because of their work at the RAAF Base East Sale and also for the Traralgon Hospital, both of which attract Commonwealth funding, that they have a code‑compliant agreement with 2014. One of the difficulties we faced was that the code 2014 wasn't lawed, it didn't exist, but it was proposed, and so I guess on 2 December we actually had law, which was new law, which we required to do some assessment on, and so we weren't talking anymore about a proposed code; we were talking about an actual one. So I guess that's why, Commissioner, we objected to the protected action ballot order, because we thought well, we've finally got something concrete to talk about, that is, the actual - it's now law - we would have thought it might be time to talk. Sorry.
PN171
Ms Maloney just gave evidence that you've not requested to meet with her since 2 December as though the obligation is on you, but can you explain in your own words why you've not met with the CFMEU since 2 December?‑‑‑Because I've been preparing for these proceedings. But certainly I am available. I am instructed by P & D that we're available to meet as soon as possible.
PN172
When was the first time the CFMEU told you it was available to meet since 2 December?‑‑‑Just in the recent correspondence.
PN173
That was in response to correspondence from you?‑‑‑Well I think - there was an exchange, wasn't there - it was over the weekend, so really the 15, 16 and today's correspondence, because they've indicated they're prepared to meet with us. That's quite recent. And really, just in preparing for giving evidence today and just reflecting on the statement - - -
PN174
MR BONCARDO: I object to the monologue, Commissioner. It doesn't seem to be responsive to my friend's question.
PN175
THE COMMISSIONER: I'm not interrupting the witness.---I guess, in terms of - I've made the point that the code was front and centre; it's now law, so we do want to talk. At each step along the way we've always been prepared to meet, and as my statement reflects, once the first pattern agreement was put on the table on 27 June there was just silence until we wrote our first bargaining notice letter, which was I think on 18 July. That then attracted a response from the CFMEU. We met with Mr Graauwmans and a lawyer - her first name was India, I'm not sure what her surname is - and the response as I described in my statement. I'm just trying to sort of look at the - standing back from the detail. After that meeting, there were no meetings from 30 July till, you know, 22 September, I think my statement says, when we decided well, we need to meet with the CFMEU to talk, so we initiated proceedings under section 240 of the Fair Work Act to actually get some discussion happening together.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN176
The Commission was very helpful in terms of facilitating that process, and it came down to the same issues basically - the code and the disparity in the money. So I think, in many ways, even Ms Maloney's response to when the Commission asked for a report back, a status report, Ms Maloney's response was well, we're at an impasse - there's no point in doing - so we've had to take the initiative every step along the way to get them to talk to us, so we welcome the fact that they want to talk to us now. That is what we've always wanted.
PN177
Can the discussions continue even if there is a protected action ballot order in place?‑‑‑I guess not, Commissioner. I think finally having the law in place was a trigger, I thought, for some meaningful discussion, because I did have some understanding of the CFMEU's argument - well that's proposed law, you know - but on this occasion I thought it might have been the trigger for well, let's meet again, rather than here's a protected action ballot order the day immediately after it went through the Senate.
PN178
If you weren't prepared to meet with the union since 2 December because you were preparing for this hearing, does that mean that each time something else comes up it takes priority over bargaining? You've just said if a protected action ballot order is issued, you won't be prepared to meet?‑‑‑No, I wasn't suggesting that, Commissioner. I was suggesting that our response was to what they put on the table was a protected action ballot order immediately the day after, so our attention was to focus on seeking to deal with that, to oppose that, because - - -
PN179
Why can't you deal with both together?‑‑‑Yes, I'm sure it's possible to do that, Commissioner.
PN180
That's a possibility. Why didn't you?‑‑‑I guess - - -
PN181
I don't want guesses.
PN182
THE WITNESS: Okay - - -
PN183
MS MANSINI: Perhaps I can assist.
PN184
THE COMMISSIONER: No. I've - - -
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN185
MS MANSINI: I think there are two different questions that you're asking the witness. He gave evidence on the first hand that he understood the CFMEU has only just requested a meeting in the last few days. In preparation for the protected action ballot order proceedings that we're here for today, for which he's giving evidence, is a different question to whether he'd be prepared to meet after a protected action ballot order is issued, and I understand, from prior discussions and in preparing this witness statement for Mr Bradford, the answer is different. So it might be worth defining the two questions for him in that way.
PN186
MR BONCARDO: I thought it was perfectly clear, Commissioner.
PN187
THE WITNESS: I can answer - I know what you're asking, Commissioner, so - - -
PN188
MS MANSINI: Sorry, can I just ask that my friend actually stands up and makes an objection but doesn't interrupt my witness from giving evidence.
PN189
THE COMMISSIONER: Let's get to the bottom of the questions that I am asking the witness. I'm trying to work out your - - -
PN190
MS MANSINI: And he's continuing.
PN191
THE COMMISSIONER: Your evidence was we haven't met since 2 December because of preparing for this hearing, and then earlier you said we couldn't meet this week because I was preparing for this hearing. You give evidence in a way that preparing for this hearing takes precedence over bargaining?‑‑‑Just in terms of time required, Commissioner, really. For instance, part of the process is taking instructions from the people I'm representing, and that the first step was to say we've got till 2 pm on Monday, it would have been the 5th, to decide whether you wish to object to the protected action ballot order or not. My instructions were to lodge the objection to, at that time, Deputy President Gostencnik's chambers. Thereafter, of course - and we were also dealing with Premier Cranes who had a similar application quickly followed by another one - so that whole week, like, from the 5th to the 9th, was taken up by seeking instructions and clarifying instructions about how we would proceed to prosecute the objection to the protected action ballot order. Ultimately it's a fair question, Commissioner, that we could have squeezed in some time to fit in a meeting with the CFMEU. They weren't asking for a meeting at that stage. They were asking for a protected action ballot order. And our experience of dealing with the CFMEU is that unless there's some, if you like, an issue on our part, it doesn't happen - and I mean a formal initiative, like a bargaining notice letter, so hence our first bargaining notice letter of the 15th, the second one responding to theirs, that that is what historically seems to have triggered a response from the CFMEU to actually meet. The next step, of course, is to actually engage in meaningful and genuine negotiations, as opposed to saying well, here's the pattern, everyone else has signed it, what's wrong with you, why don't you make an appointment.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN192
Would they ever have used that language: here's the pattern, assign it?‑‑‑The time that it was clearly used for me was by Ralph Edwards, the president of the union, at the meeting, I think it was either 31 May or 15 June, when he said once we have our pattern in place there won't be any further discussions on what was at that stage our document. I think what happened was we got the jump on the CFMEU. We have a draft agreement ready to go, and they didn't have their pattern ready. So it was a bit - - -
PN193
So it's your pattern agreement versus their pattern agreement?‑‑‑Well there's only one of ours - I suppose it did represent a number of other companies at the same time, although they had different priorities: they were seeking exemptions for particular sites and each company wanted exemptions for different sites, and they wanted it in the agreement, so strictly speaking it was not a pattern. But after 27 June, you can see from the actual activities that happened, it was exactly as Mr Edwards had said - and I have great respect for Mr Edwards; as a union official he keeps his word - there wasn't any meaningful discussions that arose with the CFMEU after that date. It was pattern bargaining. It still is.
PN194
I interrupted you. You can continue.
PN195
MS MANSINI: Thank you, Commissioner. I don't have really many more questions for you, Mr Bradford, other than to say, just to make sure it's clear on the record what your evidence is about the reason why you didn't meet between 2 December and now, when you received the CFMEU's protected action ballot order application on 2 December, what did you understand to be its position about negotiations for this agreement, or whether any meetings were of any utility?‑‑‑I would have expected they thought, you know, it's time to start beating up on the employer because they won't sign our pattern agreement.
PN196
Can I just take you to the form of the orders sought in this matter? I'm not sure if you've got a copy of the protected action ballot order application there with you?‑‑‑I don't have it but I'm familiar with it.
PN197
I might just in the interests of efficiency, I might just read to you some of the questions and ask you to comment for me if you know what they mean.
PN198
MR BONCARDO: Commissioner, I understand from the submissions that I received at about 11.30 today that there is an issue in respect to how some of the questions are worded. I'm not sure how this witness's views or opinions about the wording of the questions can possibly be relevant. My friend's going to ask him to speculate about - - -
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN199
THE COMMISSIONER: Then whose view or opinion would be relevant?
PN200
MR BONCARDO: Yours.
PN201
THE COMMISSIONER: So you think that it's an issue - - -
PN202
MR BONCARDO: It's a matter for submission.
PN203
THE COMMISSIONER: It's an issue only for submission?
PN204
MR BONCARDO: Yes.
PN205
THE COMMISSIONER: I'm content to deal with it as a matter of submission.
PN206
MS MANSINI: With respect, I think it's relevant whether or not the employer is able - and its bargaining representative - is able to understand what is meant by the form of the questions. It's actually quite common for there to be evidence about the ambiguity or otherwise of the question. The submission that it's not relevant is unusual at its highest.
PN207
THE COMMISSIONER: Is Mr Bradford going to be voting upon the questions?
PN208
MS MANSINI: He's the bargaining representative for this agreement, so as you know, he has a special character under the Act to advise about the process.
PN209
THE COMMISSIONER: Yes. I'm quite happy for you to ask the questions. I don't think that this is two bob each way. Ultimately it is going to be my decision and it's not necessarily going to be decided solely upon the evidence, because whatever evidence is given has to then be put into context, and you're going to have make submissions in any event.
PN210
MS MANSINI: Another outcome may be, Commissioner, that we have a discussion about the form of the orders.
PN211
THE COMMISSIONER: Ask the questions. If you want to ask some questions, ask the questions.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN212
MS MANSINI: I'm happy to have a discussion with the representatives about the form of the orders.
PN213
THE COMMISSIONER: No, you can just go ahead and keep asking Mr Bradford questions. I'm happy for that.
PN214
MS MANSINI: Okay. Mr Bradford, I was going to just give you two examples of questions in the order and ask you if you understand what they mean. The first question is titled:
PN215
Question 1: An unlimited number of stoppages of work for a duration of one hour.
PN216
And then the next questions 1 to 4, they all appear in a similar fashion. Question 5 then says:
PN217
Question 5: An unlimited number of strikes for the duration of 24 hours.
PN218
And the difference between the terminology is, "stoppages of work," and "strike." Can you explain to me, do you know what that means?‑‑‑Well I have discussed that with people I'm representing and we don't understand if there's a distinction or not, why there's different terms used. Presumably it means that work's not going to continue, but I would have thought it would be the same language surely, but there's also issues - - -
PN219
THE COMMISSIONER: You've been around long enough, you're an experienced industrial relations practitioner - does the notion of a strike convey something more, or less, or the same as the notion of a stoppage of work?‑‑‑Being an experienced practitioner I am sort of used to being clear and unambiguous, and I would have thought the terminology should be clear. What are we talking about. Could I just explain in the context with crane operations, so the crane is set up - mobile cranes - there's a whole range of infrastructure around it which sort of requires proper set up; you can't just leave it there. Sometimes it's part road closure, sometimes a full road closure; sometimes there are power lines which are taken down. Therefore, the language does need to be precise. Are they actually going to go back to work, or are they going to take the crane back to the yard; if it's a one‑hour stoppage or an unlimited number of stoppages, or unlimited number of strikes. I guess that's where the notice period becomes relevant as well. But I would have thought it would be simple just to use the same language - strike or stoppage.
*** DOUGLAS ANTHONY BRADFORD XN MS MANSINI
PN220
It might be simple, but if someone is referring to a stoppage of work, or a stop‑work, you do know what that means, don't you?‑‑‑Well it could be a paid meeting or an unpaid meeting.
PN221
But this is in the context of a protected action ballot order where it will be a notice given as protected action, so if it's protected action which is a stoppage of work, do you understand what that means?‑‑‑That work stops.
PN222
So they either sit there and they have a cup of tea or they wander around or they wander off?‑‑‑Or do they take the crane back to the yard, Commissioner?
PN223
But then that would be work, wouldn't it? Isn't the driving of the crane and taking it back to the yard performance of work?‑‑‑I would have thought that for safety reasons you can't just leave equipment in a place for a period of time with the road closure in place and the power lines down and associated people without power for an indefinite period, because the crane hasn't been returned to the yard. But certainly I think clarity is something which is important in a protected action ballot order, and I would suggest, Commissioner, that it's more professional to be clear.
PN224
If the language is a strike for the duration of 24 hours, you'd still have the same point to make, and that is, do they take the equipment back before they go on strike?‑‑‑I would suggest then, Commissioner, they wouldn't even take the crane out in the first place.
PN225
But if the 24 hours starts in the middle of the day?‑‑‑Yes, you can see you could have complete mayhem.
PN226
But isn't that the intention of protected action?‑‑‑Not when it affects other members of the community, other members of the contractors, road users, domestic residences using power.
PN227
Back to you.
MS MANSINI: Thank you. I have no further questions in‑chief.
CROSS-EXAMINATION BY MR BONCARDO [2.04 PM]
PN229
MR BONCARDO: Mr Bradford, this application is an important one for your client, is it not?‑‑‑An important - - -?
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN230
An important application for your client?‑‑‑Yes.
PN231
So important in fact that you've had no time to contemplate meeting the CFMEU from 2 December because you've been preparing for it?‑‑‑Yes.
PN232
THE COMMISSIONER: When you put it that way, was there a meeting proposed on 2 December?
PN233
MR BONCARDO: No. The evidence of Mr Bradford, Commissioner, is that: I haven't had any time at all to contemplate meeting the CFMEU since 2 December because I've been preparing for this matter.
PN234
THE COMMISSIONER: Yes, so that's contemplating meetings?
PN235
MR BONCARDO: Yes.
PN236
THE COMMISSIONER: All right.
PN237
MR BONCARDO: And that's what I put to him and he agreed.
PN238
THE COMMISSIONER: Mr Bradford, has any meeting been asked of you by the CFMEU since 2 December?‑‑‑Only this morning.
PN239
MR BONCARDO: It's the case that a meeting was asked of you on the 16th which was Friday, wasn't it, sir?‑‑‑Yes, well today's Monday, and so, like - and we were working over the weekend, I guess.
PN240
Yes, and Ms Maloney did write to you on Friday the 16th and asked to meet this week, didn't she?‑‑‑Yes, and that's quite possible to occur too.
PN241
Thank you. Sir, you've prepared your statement, which is the single piece of evidence countering this application, with great care?‑‑‑Yes.
PN242
And you've ensured that it's all‑encompassing, that it includes a recitation of all of your interactions with the CFMEU during the course of bargaining for this agreement?‑‑‑No.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN243
It's not encompassing?‑‑‑No, it's certain points - relevant points - not every piece of interaction.
PN244
So you've cherry‑picked some points that you think are important?‑‑‑I wouldn't use the word, "cherry‑picked." I just highlighted what I thought was relevant to these proceedings today.
PN245
I see. Sir, it's the case, isn't it, that you're the bargaining representative for the respondent, aren't you?‑‑‑That's correct.
PN246
It's not AMMA?‑‑‑Sorry?
PN247
Not AMMA?‑‑‑Can I just have a look at the bargaining letter?
PN248
Just look at PD1 to your statement, sir?‑‑‑Yes - no, let me just check it. Yes, I think it's basically AMMA are with me as the contact person, but certainly, you know - - -
PN249
Formally, you're the bargaining representative?‑‑‑I have always been the person who's led the discussions, yes.
PN250
Certainly, so you weren't quite right at paragraph 4 of your statement when you said AMMA was the bargaining representative?‑‑‑No, I actually think - for instance, if I wasn't available, another officer of AMMA would fill that role. So I think it's actually accurate that - I mean, whenever you lodge an application, a form F53, for instance, I usually write Australian Mines and Metals Incorporation, Tony Bradford, principal consultant, so it is AMMA, and if I'm not available another person can fill that role. So it's not strictly speaking.
PN251
Sir, at paragraph 25 of your statement you speculate, or you pick some information or some evidence about things that you've heard about another agreement the CFMEU's been promulgating?‑‑‑Yes.
PN252
Do you see that? This is the pattern agreement in different terms?‑‑‑Yes.
PN253
And it's the case, isn't it, that you haven't met with the CFMEU about this new unknown agreement, have you?‑‑‑The new unknown agreement?
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN254
Mm, the second agreement that you talk about in your statement?‑‑‑I think what I'm referring - well I know what I'm referring to here in paragraph 25.
PN255
Why don't you just answer my question?‑‑‑No, I'll tell you what I mean at paragraph 25.
PN256
Don't worry about paragraph 25.---I represented - - -
PN257
Mr Bradford, I asked you whether or not you had had any meetings with the CFMEU in respect to this second agreement. What's the answer to that question?‑‑‑Yes.
PN258
You have?‑‑‑Yes.
PN259
Since 2 December, have you?‑‑‑No, not since 2 December - nothing from 2 December, you know that.
PN260
Which meeting included in your evidence was this second agreement discussed at?‑‑‑In fact I think it was before the Commission in a teleconference on 18 November, and prior to that I had sent through an analysis of what appeared to be two sets of agreements for a whole range of different mobile crane companies, all in identical terms, except for the name of course. And the reason I brought that to the attention of the CFMEU and the Commission was because it seemed to me that the copy that we had been given on the 27th was clearly not code‑compliant with the 2013 code; therefore the CFMEU had just done a deal with these companies, 44 of them, and they lodged another agreement, albeit that the first agreement, the first in time, continues to apply. So I wanted to clarify, well what does this mean for our negotiations with P & D Cranes; are we talking about - because we haven't done one of the bodgy ones, the first sort of non‑compliant with 2013 agreements - so I presume that we're talking about the second one, without the exclusion clause in the scope, albeit that says the first one doesn't apply, purportedly.
PN261
The CFMEU has never communicated to you about P & D Rigging anything about any other agreement, other than the agreement that was provided to you on 27 June, has it?‑‑‑I don't actually understand that question. Is that a question?
PN262
Yes, it is. I'll phrase it in simple terms for you.---That's a good way.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN263
The CFMEU has not said anything to you about it seeking an agreement alternative to the agreement that was sent to you by Mr Graauwmans on 27 June?
PN264
THE COMMISSIONER: That's a statement, not a question. You then have to say: "isn't that correct."
PN265
MR BONCARDO: Correct?‑‑‑The CFMEU have never communicated - could you say it one more time, please, because it's very unclear.
PN266
The CFMEU have said nothing to you about seeking an agreement alternative to the agreement that Mr Graauwmans sent to you on 27 June, that's right, isn't it?‑‑‑Not strictly speaking, no.
PN267
And it's the case, isn't it, that your assertions about this so‑called second agreement are purely speculative?‑‑‑No, they're not. I got them off the internet, and I've actually sent you a copy, and it's in my evidence as well. You can see that there are two different agreements for at least 44 mobile crane companies. How that gets through the Commission I don't know. Presumably when the form F17's filled out you don't answer the question correctly, or the employer doesn't, where it says: "Do you know of any other agreements lodged in similar terms," because in some cases an actual member of the Commission has approved both agreements.
PN268
I'm asking you about P & D Rigging. I'm not interested in what may or may not be happening elsewhere.---It's interesting though, isn't it?
PN269
Do you understand that?‑‑‑Yes, keep going.
PN270
And it's the case, isn't it, that at no point has any other agreement been put to you as the agreement the CFMEU want to make with P & D Rigging?‑‑‑I thought I answered that question before.
PN271
THE COMMISSIONER: Well can you answer it again?‑‑‑Can you say it again then, please, because I want to make sure it's in the same terms.
PN272
MR BONCARDO: You've just been giving evidence about another agreement that you think the CFMEU might be wanting to make with P & D Rigging - - -.---Sorry, it's not just another agreement.
PN273
I'm trying to focus on P & D Rigging, okay, and you understand, don't you, that the CFMEU have never communicated to you that they are seeking any agreement other than the agreement sent to you on 27 June, correct?‑‑‑Correct.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN274
So it's the case, isn't it, that when you - - - ?‑‑‑Which creates problems of its own, of course, because it's not compliant, even with the 2013 code.
PN275
Sir, just answer my questions. It's the case, isn't it, that when you say that this second agreement the CFMEU might be making, might want to make with P & D Rigging, you are conjecturing and speculating about what the CFMEU may or may not want to do?‑‑‑Well I think I got some more direct evidence than that. I mean, because the agreement which Premier Cranes, who I was also advising, was compliant with the 2013 code, so it was the second one. So I think it's reasonable for me to assume that if P & D Cranes instructed me to go in and sign - you know, make an appointment, go in and sign the agreement at your office, that it would be the one that's compliant with the 2013 code. I think it's a reasonable assumption.
PN276
Just an assumption that you've made though, isn't it?‑‑‑Of course.
PN277
And it's also the case, isn't it, sir, if I understand your evidence correctly, that the agreement that the CFMEU is seeking with P & D Rigging is different from the agreements that it has made with Premier Cranes, is that right?‑‑‑No. I think it's reasonable to assume that if Mr Stockdale was to go in to the union office you wouldn't be asking him to sign that agreement from the 27th. It would be the 2013 code‑compliant one, and if they did decide to do that, I'd be certainly checking to make sure it was.
PN278
And that's just speculation and conjecture again on your part, isn't it?‑‑‑I think it's reasonable grounds to assume that would be the case.
PN279
THE COMMISSIONER: If it's reasonable grounds to assume that, doesn't that automatically invite the conclusion that it's not pattern bargaining, in the sense that whatever was the original document has now changed, and it's changed because it meets someone's requirements? The very fact that you say it's a reasonable conclusion to draw that, if P & D Rigging went into the CFMEU offices and signed an agreement today, it would not be what is - I think it's JM1, which is the attachment to Ms Maloney's witness statement, it would actually be a different document?‑‑‑It'd be the pattern agreement which they discovered after they'd made a mistake. In the first 44 crane companies they did, suddenly realised oh my God, this is not 2013 code‑compliant, because Metcalf Cranes took the time to have the Commission assess it, and once they released that information to the other mobile crane companies - - -
PN280
Which Commission?‑‑‑The Fair Work Building Commission.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN281
Not this Commission?‑‑‑No, definitely not, Commissioner, although I am surprised how those second agreements got through approval in the Commission. I mean - - -
PN282
I'm not going to comment on that.
PN283
THE WITNESS: And I brought it to the attention of the panel head - - -
PN284
THE COMMISSIONER: And that's the appropriate place for it to go.
PN285
THE WITNESS: Yes, and I think it's probably - it's more evidence that pattern bargaining is occurring than anything else, that oops, we made a mistake, let's just whack another one in, even though it doesn't actually apply.
PN286
THE COMMISSIONER: You have no evidence?‑‑‑Sorry?
PN287
You have no evidence?‑‑‑Of what? But they're on the website, Commissioner.
PN288
On whose website?‑‑‑The Commission's website - two agreements for the same company in the same terms, the same scope, only the second one's amended to take out offending items of 2013 code. And so now everyone's being asked to sign the 2013 code‑compliant version, and that's the new pattern.
PN289
This is not in your witness statement, is it?
PN290
MR BONCARDO: No.
PN291
THE WITNESS: It is actually.
PN292
THE COMMISSIONER: By reference to matter numbers?‑‑‑I had attached it in my evidence.
PN293
MS MANSINI: DAB11, just to assist the Commissioner.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN294
THE WITNESS: Yes, that's what I sent to yourself, Commissioner. I also sent it to Gostencnik DP and to a Commissioner who - Skylift Cranes, the Commission members - I think it was Hampton C and Roe C who approved the two agreements in the Skylift matter. So they're all the agreements, and you could see that some of those, like the one for Brent Cranes Pty Ltd, both versions were approved by Gregory C within weeks of each other. I'm just not sure how that happens.
PN295
THE COMMISSIONER: The difficulty with this is it's not an analysis of the agreements themselves, and I'm not going to go back and try to go through all 50 items that are there and try to look at every file. You're making the assertion that where an agreement appears by the same name, it's got exactly the same contents in all respects?‑‑‑I guess, Commissioner, I'm saying it's pattern bargaining.
PN296
Yes?‑‑‑The CFMEU made a mistake, they quickly responded and changed their pattern and then required people to sign the new one. And to be honest, when I have said to people that we have objected that the CFMEU are pattern bargaining, they'd laugh hysterically - of course they're pattern bargaining and they always have, that's what they do; of course you don't have a proper access period, you simply go in and make an appointment to the union office and sign up the agreement, they'd draft the form F17; isn't that how it occurs, no?
PN297
You don't ask the questions from the witness box, Mr Bradford. Remember you are not an advocate today.
PN298
THE WITNESS: No. Thank you, Commissioner.
PN299
MR BONCARDO: You've given evidence before, haven't you, Mr Bradford?‑‑‑Sorry?
PN300
You've given evidence before in the Commission?‑‑‑I'm usually an advocate.
PN301
I understand. Perhaps that's why you're having difficulties. Sir, it's the case - - -
PN302
THE COMMISSIONER: I remind all advocates. That's why I reminded Ms Maloney of the same.
PN303
MR BONCARDO: Yes.
PN304
THE COMMISSIONER: Advocates find it incredibly difficult to not be argumentative.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN305
MR BONCARDO: Certainly, Commissioner. Mr Bradford, you are familiar, aren't you, with the Code for the Tendering and Performance of Building Work 2016?‑‑‑Am I familiar with that?
PN306
Yes?‑‑‑Not really, no. It's only new.
PN307
Yet you give evidence about the agreements possibly not being compliant with the 2016 code, don't you?‑‑‑I think my evidence actually says quite explicitly that we have an AMMA audit person who's actually - - -
PN308
You say you're concerned?‑‑‑Yes, I am concerned.
PN309
You say you're concerned?‑‑‑That's correct.
PN310
And you also understand, don't you, that the 2016 code doesn't impact on what are permitted matters for the purposes of an enterprise agreement, does it?‑‑‑I'm not sure actually. I'm not a lawyer. We have people who work internally who give us advice about those sorts of things.
PN311
And you've familiarised yourself with the requirements for code compliance?‑‑‑With 2016?
PN312
Yes?‑‑‑Not thoroughly, no. I'm in the process of doing that.
PN313
You understand, don't you, that in the event that a company is not code‑compliant they may not be able to tender for Commonwealth government‑funded work?‑‑‑That's our primary concern.
PN314
It's the case, isn't it, that if a company does not have an enterprise agreement that's code‑compliant, they're not subject to any penalties, are they?‑‑‑My advice is that they could be, yes. If they're working on - - -
PN315
They're not going to be fined or anything along those lines, are they?‑‑‑That's not the advice I've had internally, no.
PN316
And they're not going to be subject to any prosecutions, are they?‑‑‑No, I don't agree with that. My advice is that they would be potentially subject to prosecutions and penalties. That's why it's in my statement.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN317
I put it to you, sir, that you are wrong at paragraph 27, that if P & D doesn't have a code‑compliant agreement that it will be subject to penalties or prosecutions?‑‑‑My advice internally, and the reason it's in my statement, is because my advice is that they could be subject to prosecution and penalties, like currently working on Commonwealth‑funded jobs and not having a compliant agreement.
PN318
I suggest to you, sir - - - ?‑‑‑Particularly if they've signed up afterwards.
PN319
I suggest to you, Mr Bradford, that your advice is - - -
PN320
MS MANSINI: I'm going to object to this point. If my friend could stop badgering the witness, that would be helpful. I think he's answered the question now about four times.
PN321
THE COMMISSIONER: Yes, I'm going to stop you in any event. You're not legally qualified?‑‑‑No.
PN322
You don't understand all the nuances of the 2016 code?‑‑‑No, not yet, Commissioner.
PN323
Yet you say: "P & D would also be exposed to prosecutions and penalties." Is that your view, or is that advice that a person qualified has given you?‑‑‑Correct, Commissioner. A legally‑qualified employee of AMMA has told me that that's potentially the case.
PN324
Have they explained to you how they'd come to that conclusion?‑‑‑They didn't go into any great detail because I didn't have the time for that. We are certainly in the process of - just for the purpose of giving advice to our membership base, Commissioner - of making sure we're across - I mean, after the law's proclaimed there's usually a flurry of emails and statements that go out purporting to be advice on the subject, but we're trying to settle that internally.
PN325
Is that statement in paragraph 27 of your witness statement, is that only post‑the issuing of the 2016 code, or did that relate to pre‑the 2016 code?‑‑‑In this case, for the purposes of this statement, it's post‑2016.
PN326
So that's a statement that only relates to the 2016 code?‑‑‑For the purposes of my statement, that's what I understand.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN327
And that's from another person?‑‑‑An employee of AMMA who is legally‑qualified, yes, correct.
PN328
MR BONCARDO: Mr Bradford, it's the case, isn't it, that you had a lengthy discussion with Ms Maloney and Mr Booth on 28 September about this agreement, didn't you?‑‑‑28 September? That was in front of a member of the Commission under section 240, that's correct.
PN329
Yes, and the various issues between the parties were canvassed at that meeting, weren't they?‑‑‑That's correct.
PN330
And Ms Maloney and Mr Booth, who was in attendance, communicated the CFMEU's views in respect of particular clauses, and you communicated your views in relation to particular clauses?‑‑‑It was the other way around actually. We communicated our views and Ms Maloney responded.
PN331
Certainly, and then Ms Maloney provided to you a comprehensive document responding to what you said were problems with the agreement in respect to the 2014 code?‑‑‑It was the other way around. We provided a comprehensive document, which was done by a person in Perth who's the person who does that for us, and Ms Maloney, after some prompting, managed to get back to us and you'll see that her comments are recorded in red.
PN332
Yes?‑‑‑But the rest of the document is ours.
PN333
And you'd agree with me, wouldn't you, that Ms Maloney's comments were comprehensive and they dealt with every single point that you raised?‑‑‑No, I thought that was part of the pattern bargaining process. It was just a response to say no, we're not going to agree to change that because it would involve changing the pattern agreement.
PN334
She didn't say that anywhere in that document, did she?‑‑‑ didn't say she did say it. That was my - - -
PN335
It was your interpretation?‑‑‑Exactly right.
PN336
So you'd agree with, wouldn't you, that you see pattern bargaining almost everywhere in your interactions with the CFMEU?‑‑‑Well certainly in the construction industry and certainly in the mobile crane industry.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN337
And that you viewed these negotiations and your interactions with Ms Maloney through the prism of pattern bargaining?‑‑‑We were looking genuinely for changes which would suit P & D Cranes, and the changes which we said it was to be at that time compliant with the 2014 code, and we were also looking for a concession in respect of the escalations in the agreement.
PN338
When you escalations, do I take it you're talking about wage rates?‑‑‑Wage rate increases. But the primary concern of P & D Cranes was being compliant with the code. That's always been their major concern because they do a whole range of Commonwealth government work, and we wanted those changes to occur.
PN339
Before 2 September, the code that was in force legally - - - ?‑‑‑You'd mean December?
PN340
Thank you, sir - was the 2013 code, wasn't it?‑‑‑You're talking about the - - -
PN341
Before 2 December, the 2013 - - - ?‑‑‑Yes, the proposed 2014 code, of course, was flagged in 2014, and I think the cut‑off date was 24 April 2014. All agreements after that needed to be compliant with the code. The problem was it wasn't the law.
PN342
Yes, and the law was the 2013 code, wasn't it?‑‑‑That's correct, yes.
PN343
The CFMEU had always bargained with you up until 2 December in respect to obtaining agreement that was 2013 code‑compliant, hadn't they?‑‑‑That turned out not to be the case because the document that was sent to us on 27 June wasn't compliant with the 2013 code.
PN344
You haven't detailed that anywhere at all in your statement, have you?‑‑‑Sorry?
PN345
You haven't detailed that anywhere at all in your statement, have you?‑‑‑I don't recall if I did or I didn't, but either way it's obvious.
PN346
Is the answer to my question no?‑‑‑Actually I think in relation to my comments in relation to DAB11, that's the point I was making, that the agreements - that the first pattern agreement - - -
PN347
I'm asking about the agreement that Mr Graauwmans sent to you on 27 June?‑‑‑It was not code‑compliant with 2013.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN348
You haven't said that anywhere in your statement, have you?‑‑‑I think I have.
PN349
I put it to you that you haven't. Show me where you have?‑‑‑DAB11.
PN350
Where does that talk about the P & D agreement?‑‑‑Okay, where is DAB11 - yes, that's the point I'm making at point 29 is that, here we go:
PN351
These agreements which were all lodged in July were the same one as the 27th.
PN352
So the point I'm making there is - - -
PN353
That's not what's said in your statement, is it?‑‑‑I know. It doesn't say that precisely, but clearly you could draw that inference, and I suggest that maybe you should.
PN354
Sir, it's the case, isn't it, that you were not present when Premier Cranes went and spoke with Mr Edwards and the CFMEU the other day?‑‑‑I don't think Mr Edwards was involved in that meeting.
PN355
At the CFMEU offices?‑‑‑But if you're telling me he was, then I guess you would know.
PN356
You weren't present when Premier Cranes went and spoke with the CFMEU - - - ?‑‑‑I was not present at the CFMEU office, no. I met them immediately afterwards. They debriefed us.
PN357
And you also do not - you work full‑time for AMMA, don't you?‑‑‑Mm.
PN358
You've never worked in P & D's business, have you?‑‑‑No, I've never been employed by P & D Cranes.
PN359
And it's the case, isn't it, that Mr Stockdale - is he here today?‑‑‑He is.
PN360
And he hasn't given evidence in these proceedings?‑‑‑No.
PN361
Any reason why he couldn't?‑‑‑Because I'm the bargaining representative.
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
PN362
Thank you, sir. It's the case, isn't it, sir, that you well understand that there is nothing at all precluding the CFMEU from engaging in what's called hard bargaining?‑‑‑I think it's pattern bargaining. It's not hard bargaining. That's our objection. You're not genuinely trying to reach agreement with us.
PN363
You understand, don't you, that there's nothing wrong with a bargaining representative saying I don't want to compromise on a particular clause, or I don't want to compromise on - - - ?‑‑‑Yes, I understand that.
PN364
And you accept there's nothing wrong with that?‑‑‑If it's hard bargaining, that's fair enough, if that was your question, but if it's pattern bargaining and you're not genuinely trying to reach agreement then that's different. Because the CFMEU are seeking from P & D Cranes an agreement in identical terms to a range of other people.
PN365
Where does it say that in your statement?‑‑‑Sorry?
PN366
Where does it say that in your statement?‑‑‑Every reference to pattern bargaining can be taken to mean exactly that.
PN367
You haven't disdained to spell that out to the Commission, have you?‑‑‑I do so now in my evidence.
PN368
And you haven't deigned to detail to the Commission any agreement at all that is in like terms to this agreement that the CFMEU is proposing?‑‑‑That's what I've just been explaining in terms of - - -
PN369
You haven't descended into any detail at all in your statement on that count, have you?‑‑‑Well I can do so now, if you like.
PN370
I'm not asking you to do it now?‑‑‑Okay.
PN371
I'm asking you about your statement. You haven't descended into any detail at all, have you?‑‑‑I think I have - like, I'm not going to do a 50‑page witness statement.
PN372
That's the cross‑examination, Commissioner.
PN373
THE COMMISSIONER: Thank you. Any re-examination?
*** DOUGLAS ANTHONY BRADFORD XXN MR BONCARDO
MS MANSINI: Maybe just a couple of questions, Commissioner, if you don't mind just giving me a moment.
RE-EXAMINATION BY MS MANSINI [2.26 PM]
PN375
MS MANSINI: I think probably the only question arising is just in relation to the last few questions you were asked, Mr Bradford. In your evidence you say the CFMEU first gave you a copy of the pattern agreement on 27 June 2016, is that correct?‑‑‑That's correct.
PN376
To your knowledge has the CFMEU in your role as bargaining representative told you of any amended claims it's made since that 27 June 2016 document?‑‑‑No.
PN377
So you understand their claims to be identical to what they were on 27 June 2016 as they are today?‑‑‑Correct.
PN378
The only last thing I would just seek to clarify actually is in relation to the exchange of correspondence that was put to you earlier and a few of the suggestions that were put to you earlier. In your witness statement, you annex a copy of a letter - I'll take you to DAB7, annexure to your witness statement?‑‑‑Sorry, DAB - - -?
PN379
7?‑‑‑Yes.
PN380
It's a letter from you to Ms Maloney on 15 December, and I'll just take you to the last page - second page. Can you just read to me what it says there at subparagraph (i) in your letter?
PN381
MR BONCARDO: Subparagraph what, sorry?
PN382
MS MANSINI: (i)?‑‑‑
PN383
To appropriately address the above concerns, the CFMEU is required to respond in writing by no later than midday on 16 December -
PN384
that was tomorrow -
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN385
to confirm that it commits to a schedule of no less than six bargaining meetings to occur between 19 December and 20 January. We're happy for the CFMEU to propose the dates.
PN386
And then the letter which my friend took you to earlier, DAB8, where he said it was the CFMEU that was requesting a meeting - I think that's at your DAB8 - for 16 December. Can you just confirm if that's correct?‑‑‑At DAB8 - sorry, which paragraph?
PN387
Can you just have a look at that letter? It's in response to your letter at DAB7, is that correct?‑‑‑It might be paragraph 4 of that letter.
PN388
No, it was said to you earlier that it was Ms Maloney that wrote to you requesting a meeting. I'm just wanting to clarify for the record exactly how this exchange of meeting requests came about. So you've just confirmed at DAB7 you wrote a letter asking for a series of six meetings?‑‑‑Between - yes, after these proceedings and before late January.
PN389
And in DAB8, Ms Maloney replies to you, is that right?‑‑‑That's correct.
PN390
Saying she'll attend a meeting?‑‑‑Sorry, I missed the last thing you said.
PN391
Paragraph 8, I think, is the relevant paragraph of her reply to you?‑‑‑
PN392
That being said, we are able to meet with you next week to continue negotiations. Please contact the undersigned to arrange a meeting and time at the CFMEU offices.
PN393
But the CFMEU did not agree to a schedule of six meetings like you requested, is that right?‑‑‑They did not agree to that, no.
PN394
And when the CFMEU said they would meet with you, is that only in response to your letter or is there some other request you'd received from the CFMEU?‑‑‑No other request, no.
PN395
I have no further questions of the witness, Commissioner.
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN396
THE COMMISSIONER: Mr Bradford, in relation to DAB6, DAB6 has got a table and the email response from Ms Maloney was: "Please see attached response to your table." The table, the first five columns of the table, that's your original material?‑‑‑That is correct.
PN397
And the CFMEU position is the sixth column?‑‑‑That's correct, yes.
PN398
Who prepared your original material?‑‑‑It was an officer, Karen Nelson is her name, Commissioner. She's employed by AMMA. She works in our Perth office.
PN399
So you've relied upon this on the basis that an appropriate employee within AMMA has prepared the document and on that basis you've presented it as being the document which expresses the bargaining representative's views in relation to the agreement?‑‑‑That's correct, Commissioner.
PN400
Did you personally go through the code and the individual clauses that are referred to, or are you relying upon someone else, what their view is of the agreement and the code?‑‑‑I did read the work that she put together, but I was relying on her advice, yes.
PN401
And the code is which code at this point in time?‑‑‑At this point it is the 2014 code.
PN402
What was the legislative status of that code?‑‑‑It wasn't law. It was proposed.
PN403
A thought bubble?‑‑‑Well I suppose it attracted people's attention, Commissioner, and that was the difficulty really. I suppose that was the seminal development on 2 December, or the night before, that it actually became law - we actually had something tangible to talk about.
PN404
Are you familiar with the code at all, the 2016 code?‑‑‑I haven't given it my full attention at this stage, Commissioner, pending the advice we're awaiting.
PN405
Did you follow the debates in Parliament around the code?‑‑‑Some of it, Commissioner. I was aware that Senator Hinch was sort of crucial at one particular stage.
PN406
You understand that the code - was that the minor parties, as part of the process of approving the bill, et cetera, got the government to agree to a deferred start date for the code, do you understand that?‑‑‑I am aware that that was a concession.
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN407
Yes, and that it's November 2018?‑‑‑That's correct.
PN408
And that if an enterprise agreement was made before the commencement of the code, which was 2 December, then those employers had until November 2018 to become code‑compliant?‑‑‑I am aware of that, Commissioner, and it would have been nice to have known that beforehand.
PN409
A lot of people might have thought the same way. That seems to introduce a very interesting dynamic between agreements approved by the Commission up to 2 December and then agreements approved by the Commission after 2 December, doesn't it? There's going to be a completely different dynamic in play as to what is code‑compliant and what's not code‑compliant?‑‑‑I think that's correct, Commissioner, yes.
PN410
In which case I understand - or do I understand that the concern that you have about this concept of pattern bargaining, which you assert is in play, is that no one is looking to bargain over the terms of the agreement for P & D Cranes in the context of the application of the 2016 code as from 2 December 2016?‑‑‑Yes, Commissioner, I've seen no evidence of that from - and I think Premier Cranes was the example of that where our advice, well seeing the passage of the legislation why would you sign up to something you know to be non‑compliant. It's almost the worst case scenario.
PN411
If a person of your experience is relying upon other experts to do the work of trying to assess code compliance with a particular agreement, who is to do the job of making an agreement code‑compliant? Is it the union or the employees who ask for a particular form of the agreement, or is it the employer who ultimately has to propose an agreement to be approved by its employees?‑‑‑I think it's the employer clearly who's I think to take the initiative, and initially P & D Cranes proposed their own agreement and gave the employees the opportunity to nominate bargaining representatives. They nominated the CFMEU, so hence in respect for their wishes we commenced discussions directly with the CFMEU, and once their mobile crane pattern agreement was on foot, I think the employer was seeking some concessions to the pattern so we switched from what was our proposed agreement in my statement to what then became the pattern agreement, and we've always been seeking concessions about code compliance to that. I did understand the arguments, Commissioner, of the union in saying well it's not law yet, and it was quite a difficult thing to rebut in a robust negotiation, but after 2 December that becomes quite clear.
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN412
Then since 2 December, has anything been put to the union as the bargaining representative of the employees that specific changes are being sought to the proposed enterprise agreement to make it code‑compliant with the 2016 code?‑‑‑Not yet, Commissioner. We're waiting for that work to be done from our audit group and persons in the West, in Perth.
PN413
In the circumstances where the union has agreed to meet this week - it doesn't look like anyone's taken up that offer yet but we've still got a couple of days to go - would the employer be in a position of putting to the union what it seeks as the changes to the agreement?‑‑‑I'm just trying to get an idea of the timetable of the work we're expecting from our people in the West.
PN414
So it may or may not be the case?‑‑‑We'd be prepared to meet in any event, but certainly the moment we've got that specific information, it would be in a similar form to the table we've had here, to be able to go to the union and say here's what we would like to see changed now in the agreement.
PN415
I am certainly no expert on this code. I have never had to worry about looking at the code because for agreement approval purposes it's not a criteria in the Act to approve an enterprise agreement that it's code‑compliant, and clauses in agreements that refer to the code, as long as they don't offend against all the other provisions of the Fair Work Act, often have completely neutral value as to whether or not an agreement will pass the better off overall test, or whether it contains prohibited matter or contains the mandatory terms. So it's not a requirement of the Commission to be an expert in this code. I've looked at the current 2016 code simply because I had to. I notice that someone at the Bar table had a spare copy of the code. Has anyone got a spare copy of the code?
PN416
MR BONCARDO: I do, one, unfortunately, Commissioner.
PN417
THE COMMISSIONER: Sorry?
PN418
MR BONCARDO: I do.
PN419
THE COMMISSIONER: Good. You don't mind if I borrow it, do you?
PN420
MR BONCARDO: Certainly not, Commissioner.
PN421
THE COMMISSIONER: Mr Bradford, if you'd go the code, and I'm asking you a question on it simply on the basis that you're not a legal expert, and you are not an expert in the code, which means you're on par with me on this. Have a look at clause 11 of the code:
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN422
The code‑covered entity must not be covered by an enterprise agreement in respect of building work which includes clauses that impose or purport to impose limits on the right of the code‑covered entity to manage its business or purport to improve productivity.
PN423
And:
PN424
(b) discriminate or have the effect of discriminating against certain persons, classes of employers or subcontractors, or
PN425
(c) are inconsistent with freedom of association requirements set out in section 13 of this code of practice.
PN426
Leaving aside freedom of association, because that's very, very specific, when I have a look at paragraph (1)(a) of clause 11:
PN427
impose or purport to impose limits on the right of the code‑covered entity to manage its business or purport to improve productivity -
PN428
it seems to me that if that was an obligation in the Fair Work Act that we not approve agreements that did that, no agreement would be approved, because the moment you go above the BOOT you are doing something which is going to impose a limit on the right of an employer to improve productivity, because the moment you pay more wages than the award requires you to pay, you are significantly impacting productivity. So if I read that as statutory language, it just seems to me that, yes, if we're going to be able to make any agreement with any employer, ever, because - and if you have a look at the (b) - have a look at (b):
PN429
discriminate or have the effect of discriminating against certain persons.
PN430
I know that in the context of things, it may not necessarily be the construction industry, but every other industry that has junior rates of pay, junior rates of pay are discriminatory, have always been held to be discriminatory, and in previous iterations of the legislation the anti‑discrimination clause in the legislation had to go and write into it, "except for discrimination on the grounds of paying junior rates," had to make it clear that it was - - -.---Or disabled employees.
PN431
Sorry?‑‑‑The disabled employees award, I'm familiar with how that was developed.
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN432
So the language in this code seems to suggest that it would be next to impossible to have an enterprise agreement made. Isn't it discriminatory to pay tradesmen more than a non‑tradesperson?‑‑‑I can see the argument there and that's why my mind jumps to work previously done, like, for instance, that imposes limits on the right to manage business, improve productivity, discriminate certain classes of employees, that would be likely to mean anything that put limitations on casual employment, for instance, like casual conversion clauses or - but I guess - - -
PN433
Have a look at clause 11(3), it says:
PN434
Without limiting the generality of subsection (1), clauses are not permitted to be included in an enterprise agreement that -
PN435
and then we've got (a) through to (q), but it's those opening words, "without limiting the generality of subsection (1)." Subsection (1) is obviously designed to have the broadest possible application. If that was in the Fair Work Act we'd have a very easy job. There wouldn't be any enterprise agreements, because if you couldn't make an enterprise agreement that did those things I don't think you'd have enterprise agreements being made. Again, this is not an observation from the Bench that's a considered legal view of the operation of a code. I'm looking at this almost for the first time, and it's, in some respects, a layman's observation or an IR practitioner's observation. Do you have the same sort of observation when you look at those words?‑‑‑I do, Commissioner. I don't actually understand what - I do understand what a term like "without limiting the generality of" means, which would mean that the subsections are not sort of definitive; the list can be larger.
PN436
Yes. It can be enormously large.---And to be honest, I've been struggling with this code, whether it was 2014 code or as it is now, the law, for several years, simply because it's an imposition on employers really, because they're the ones who will be declared to be non‑code‑compliant at some stage. And of course, it appears now that there needs to be a letter written by the Australian Building and Construction Commission saying that an agreement is code‑compliant with 2016 code, so somebody somewhere must have a criteria for what they red‑line in an agreement, and we'd certainly like to know what that is for the purposes of negotiation, because to be honest, if someone did that, I think it would make our negotiations with the CFMEU much simpler.
PN437
But doesn't - in the absence of that sort of information, and in the presence of the language of clause 11, is it difficult or is it impossible to actually put what the employer wants to the union and to the employees to make the agreement code‑compliant?‑‑‑It would be ill‑advised at this stage to leap to those conclusions because they're likely to be found to be wrong, with dramatic consequences if it went through.
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN438
In which case, what do you want to be bargaining with the CFMEU over? I mean, they've offered the meeting. You say you want the meetings, and you want to have discussions for code‑compliance, but how do you actually get there, even if you've got the CFMEU in the room with you?‑‑‑I suppose we're hoping that the information that we're talking about will come to light soon, so that somebody will say these are the clauses which need to change and this is how they should change, or you know, be deleted or whatever. Then we would be in a position to go the CFMEU and to the employees of P & D Cranes and say this agreement will guarantee us access to ongoing Commonwealth‑funded work; we propose that we agree on it.
PN439
Yes?‑‑‑So hopefully - I was looking to my legal officer for some guidance about timing - presumably somebody is going to make some definitive thing before Christmas, or certainly early in the New Year would be helpful.
PN440
Yes, at least for you?‑‑‑Yes.
PN441
And for the union?‑‑‑Yes.
PN442
And whether it will do anything for the Fair Work Commission - does anything arise out of the questions that I've asked this witness that either of the Bar table want to pursue?
PN443
MR BONCARDO: No, Commissioner.
PN444
MS MANSINI: No, thank you.
THE COMMISSIONER: Thank you. Thank you for your evidence, Mr Bradford. You're excused.
<THE WITNESS WITHDREW [2.49 PM]
PN446
THE COMMISSIONER: Are you ready to both proceed?
PN447
MR BONCARDO: I certainly am, Commissioner.
PN448
THE COMMISSIONER: I'm going to stand the matter down for five minutes anyway. I need a break. I'll stand it down for 10. If we resume at 3, you'll simply both give me your closing submissions?
*** DOUGLAS ANTHONY BRADFORD RXN MS MANSINI
PN449
MR BONCARDO: Yes.
PN450
MS MANSINI: Commissioner, thank you for asking because yes, I'm prepared to do that today, but a key matter arose out of Mr Bradford's evidence, which is that the Commission won't be doing a detailed analysis of the 44 agreements that look like pattern agreements, so the only additional submission I'd like to make is the opportunity to actually do that analysis for the Commission, because we will be submitting that's an incontrovertible piece of evidence that answers the question about pattern bargaining for itself. So to the extent that that exercise needs to be done, we can do it swiftly on perhaps a selection, like a handful of agreements, not all 44, but it's clear to us we've done the page‑turn exercise, that that's what the exercise will show, so I think that's an important clarification.
PN451
THE COMMISSIONER: Okay. I'll stand the matter down. We'll still resume at 3, but have a discussion with your counterpart - both of you, have a sensible discussion about this as to how we should proceed, and I'll then have a discussion with you when we resume to then work out whether we actually go on today or not. It doesn't worry me whether or not we do go all the way through to conclusion now or whether we allow an adjournment, but if I give some latitude to the employer, I'll equally give latitude to the union as a result of what's happened today, if there needs to be a fine‑tuning of parts of the case. This is not unusual. These things just happen, because it's the way evidence often flows and you want to have another look at it. Have a chat on your own sides first, have a chat with each other; if you're ready to proceed at 3, we'll resume at 3. If you want a bit more time, let me know. Thank you.
SHORT ADJOURNMENT [2.52 PM]
RESUMED [3.05 PM]
PN452
THE COMMISSIONER: What's the position of the parties at the Bar table?
PN453
MR BONCARDO: The position is that there is no uniform position, Commissioner. I can tell you what the union's position is. It is that, in our view, first and foremost, the respondent has had ample time to prepare its case, it could have done this analysis if it wished prior to the hearing today, led evidence that it spent a good part of the last couple of weeks preparing for this matter, and filed its evidence late in any event, and it was well within its wit, well within its power, to put the material before you that it now seeks to put before you. So firstly, you shouldn't indulge them. Secondly, and I'll come to this in my oral submissions, the contention about pattern bargaining is in my submission a furphy and is of no significant bearing to the question that is for the Commission to consider, which is whether the union is genuinely trying to reach agreement with P & D Rigging. That is a matter that I'll come to in due course and I'll take you to some Full Bench authority on that. Thirdly, even if this material is provided to you, Commissioner, there is not a skerrick of evidence, not one iota of evidence, that any of this bargaining for the agreements that are mentioned at DAB11, any of the bargaining for those agreements, are in any way intertwined with the bargaining for this agreement - no evidence at all.
PN454
So the position that I put to you, Commissioner, is a compromise. It is that if my friend wishes to undertake the exercise of going through all of the agreements at DAB11, which she could have done in the last fortnight or so, that material ought be provided to you by close of business tomorrow. I think my friend said that she'd already engaged in a page‑turning process, as she termed it, and that in the event that anything arises from that, that I be afforded the opportunity to respond to that specific issue. But in terms of today, we are ready to proceed with final submissions, and if you are minded to grant my friend an indulgence it ought only relate to doing the exercise that's been foreshadowed in respect to those agreements, and if that can be done by tomorrow, if I need to respond I can have something to you by midday on Wednesday. Our principal aim here, Commissioner, is to have a decision as soon as possible. Again, I appreciate that it's a difficult time of year, but this is an important matter for the union and for its members. Thank you, Commissioner.
PN455
MS MANSINI: Thank you. This is in reply to that. The company's position is firstly, it was the union that sought delay to be able to put together its material and have a hearing today, so I think we've all agreed prior to today to abandon with the 48‑hour rule of hearing and determining these matters because it was a special case.
PN456
THE COMMISSIONER: You didn't decide that?
PN457
MS MANSINI: No.
PN458
THE COMMISSIONER: That's just a matter of course?
PN459
MS MANSINI: Correct, but I think we can all agree that that's what occurred prior to us getting here today, so this is not one of these cases where it needs to be heard and determined within the next few hours. Also I think, whilst my friend's just made some submissions which really go to his legal submissions, there is a question here about whether or not the union's genuinely trying to reach agreement. Only the Commission can be satisfied of that question - you know, the onus is on the Commission to be satisfied of that, and in circumstances where we heard a lot of evidence today that wasn't covered in the written material, we would respectfully submit that all the parties, including the Commission, would be assisted by written submissions, done promptly - we would be happy to commit to a timetable before Christmas. Hopefully a transcript could be expedited in that period. But that that would be useful, especially in circumstances where if and when an order is made there's no stay of that order, if that can be gained, so an appeal has to run quickly, and it's at that time when usually the transcripts are being called for urgently. So we would respectfully submit that if any submissions are to be given in writing after today, all submissions be given in writing with reference to the transcript so that the Commission can be assisted with its task.
PN460
THE COMMISSIONER: Why can't you both make your final submissions today, except in relation to that one point about what does DB11 mean, because DB11 is already in evidence; it's part of the witness statement? So the oral evidence from Mr Bradford as to what it means and why it's there, and the conclusions that he's already drawn, and they're very strong conclusions that he's drawn from that, it's really a case of I'm not going to go through each of those agreements, and I made that clear. If you want to go through the agreements to say here's what Mr Bradford was talking about, why can't that be done quickly but be done as an extra to everything else? Because the key argument is simply still going to be you assert that there's pattern bargaining, and you'd make that assertion on the basis that you then say you can establish that the union is not genuinely trying to reach agreement. That can all be made out now as part of your arguments, because you're not going to get any more evidence from Mr Bradford; all you're really doing is saying this is what DB11 - or what Mr Bradford was referring to in DB11.
PN461
MS MANSINI: That's all correct, Commissioner, but as a matter of procedural fairness I don't understand how, if a further submission is to be made within 48 hours of today, how there would be any disadvantage to any of the parties involved if they were full and final submissions as opposed to a minor discrete issue.
PN462
THE COMMISSIONER: All right, put it the other way - why is it not procedurally fair to require the parties to put their final submissions now, and then why is not also procedurally fair to give you the opportunity of putting the extra material on DB11 and then to allow the applicant to respond to that, and if you want to reply to that I'll give you a reply?
PN463
MS MANSINI: I was simply trying to highlight, as a matter of pragmatism, that there's a range of evidence that came out of the witness box today where the Commission may well be assisted in its important statutory task of being satisfied whether the union was genuinely trying to reach agreement, for the parties to have access to that transcript and include that in their final closing submissions.
PN464
THE COMMISSIONER: You're not a good note‑taker then? It's not uncommon for the evidence to conclude and submissions to be made. I mean, is there a specific disadvantage you say I will be visiting upon you if I require you to make an oral final submission?
PN465
MS MANSINI: Simply that I would not have the benefit of the transcript, the written record, to add to the submissions that I would make.
PN466
THE COMMISSIONER: Yes, I've had to take notes - - -
PN467
MS MANSINI: And it's at no prejudice to any party if - - -
PN468
THE COMMISSIONER: I've had to take notes during this so I can follow what is being said by both Ms Maloney and Mr Bradford and I'm presuming that you've been taking notes as well. I'm quite happy to stand the matter down for a period of time if you want to go over your notes and prepare, but the standing it down is that we'll still conclude it tonight.
PN469
MS MANSINI: I'm just not sure of what prejudice to any party, or for what purpose the Commission needs to conclude the hearing today, if there's a final submission to be made within 48 hours being a short period of time, and wouldn't the Commission be assisted in its task by having had the parties have access to the transcript to simply add to the submissions that have already been made by connecting the evidence that's been given today? In fact, it would be probably more expeditious in terms of everybody's time.
PN470
THE COMMISSIONER: I don't know. Written submissions cause more trouble than their worth sometimes, because someone has to read them and I know who the someone is; it's me. What's the relevance of establishing pattern bargaining from the respondent's point of view?
PN471
MS MANSINI: There are a number of cases that talk about the "genuinely trying to reach agreement" test in the context of section 443, not section 412 - that's a different provision, and we say this is a classic case of the pattern bargaining prohibiting an agreement being made between this company and the CFMEU.
PN472
THE COMMISSIONER: You've seen the references - do you intend working over Christmas?
PN473
MS MANSINI: Yes. I usually do, given this sort of matter.
PN474
MR BONCARDO: Commissioner, I have a difficulty in that I'm heading overseas.
PN475
THE COMMISSIONER: Have a good holiday.
PN476
MR BONCARDO: Thank you, Commissioner, but I raise that - - -
PN477
THE COMMISSIONER: No one else is in the room, by the sounds of it, so I don't think we're going to have any sympathy for you.
PN478
MR BONCARDO: - - - in a purely self‑indulgent fashion. But I just note this: my friend hasn't told you about a single piece of evidence that apparently fell from any witness today.
PN479
THE COMMISSIONER: One of the issues which is in my mind is a very practical issue, and that is that the Australian Electoral Commission has specifically asked the Commission not to issue protected action ballot orders with the usual 20‑days turnaround, and that's because over this period of time it's simply not possible for them to do it. So because of that, in any event I would be looking at a longer timeframe, so if I do it today you're not going to get a 20‑day turnaround; you're going to get a much longer timeframe. Because of that, it doesn't appear to me that any significant delay is going to be caused to the actual conduct of a ballot, even if I delay my decision by a few days. Just sit down for a moment.
PN480
MR BONCARDO: Certainly.
PN481
THE COMMISSIONER: Again, from a practical perspective, I am taking January off as a period of leave, so any decision in this matter gets issued before 29 December. There are no ifs or buts about it. It has to be done, otherwise it doesn't get done until February, and I'm not going to wait until February. It's going to get done by then. I can get transcript within three days, which means you can have it by Thursday, which means you'll be providing your submissions - and really, now it's a case of discussion either by Friday or you're going to be providing them by Monday/Tuesday, but I will be making a decision before the 29th.
PN482
MR BONCARDO: Certainly, Commissioner.
PN483
THE COMMISSIONER: That is not negotiable. So if you plough ahead today, you get a decision by the 29th. If you go ahead and you do oral submissions I can list this matter for the 28th so I can give a decision by the 29th, and if you want to do written submissions it's all going to be done so that I can still issue a decision by the 29th.
PN484
MR BONCARDO: Certainly.
PN485
THE COMMISSIONER: Which is why I'm suggesting that, you know, Christmas lunch will be a cold sandwich in front of the computer while you're preparing material; I mean, that's the practical reality of getting this done. I'm also conscious that if I make a decision in favour of the applicant for a protected action ballot order, by the time I'm hitting 29 December I can take into account the communication from the Electoral Commission about how to plan a response date. It would be greater than 20 days but not necessarily as long as what they were suggesting - like, if I do something now, it's got to be much longer than 20 days, because it's a practical issue. I'm just balancing all of this. I'm minded to grant the respondent's request that the matter not proceed today. I'm quite happy if you want to put your oral submissions today. Then that just becomes part of the transcript of the proceedings, in which case you then have leave to respond as you see fit in writing, or you can request an oral hearing on the 28th for the purposes of dealing with any loose ends. But an oral hearing on the 28th would require the respondent, in any event, to have served written submissions on the applicant before the 28th. We're in a tight timeframe but I can think I can accommodate everyone's interests.
PN486
MR BONCARDO: I'm disinclined, Commissioner, to have any hearing at all on the 28th.
PN487
THE COMMISSIONER: All right, but do you want to do oral submissions now?
PN488
MR BONCARDO: I'm happy to do oral submissions now.
PN489
THE COMMISSIONER: And then after you do your oral submissions I'll adjourn proceedings.
PN490
MR BONCARDO: Yes.
PN491
THE COMMISSIONER: Then proceed on the basis if I get transcript in three days, you'll be putting in your reply submissions - well think in terms of a timeframe, because you're going to have to get agreement from both myself and from Mr Boncardo as to when you file your written submissions so that he's at least got an opportunity to reply if he needs to, and as I said, everything would have to be before me by close of business on the 28th so I can deal with this matter on the 29th. I think I've got my dates right - the 29th is the Friday?
PN492
MR BONCARDO: The 29th is the Thursday.
PN493
MS MANSINI: Yes, the 29th is a Thursday.
PN494
THE COMMISSIONER: Then it's the 30th.
PN495
MR BONCARDO: Yes, the Friday is the 30th.
PN496
THE COMMISSIONER: I'll be working on the Friday.
PN497
MR BONCARDO: Yes.
PN498
THE COMMISSIONER: It's the Thursday/Friday, because I think the Monday/Tuesday are public holidays, and Wednesday is a public holiday for the purposes of the Fair Work Commission's enterprise agreement, which means that it's not open.
PN499
MS MANSINI: That's right, it's not open and you're going into the 29th.
PN500
THE COMMISSIONER: Yes, so it will be the Thursday/Friday. It's those two days which is my window of opportunity next week.
PN501
MR BONCARDO: If the Commission pleases.
PN502
THE COMMISSIONER: Are you content with that, Ms Mansini?
PN503
MS MANSINI: Yes. Thank you very much, Commissioner.
PN504
THE COMMISSIONER: Then on that basis, Mr Boncardo, submissions.
PN505
MR BONCARDO: Thank you, Commissioner. Commissioner, can I provide to you four decisions, which I'll come to in the course of my address. I can commence, Commissioner, by making some comments about what this case is about and what it's not about. The sole issue between the parties is whether or not you can be satisfied that the union is genuinely trying to reach agreement for the purposes of 443(1)(b) of the Act. The respondent hangs its hat solely and specifically on the union engaging in pattern bargaining, and that contention, in my submission, is not borne out by the evidence, and cannot be borne out by the material that is contained in Annexure DAB11. But in any event, let's assume for a minute that that contention is correct, that is in no way - in no way - a means for my friend to say well pattern bargaining entails that an applicant is not genuinely trying to reach agreement. There is no decision rule. There is no uniform standard that if an applicant is engaged in pattern bargaining at this point in time, that is, at the point in time when a protected action ballot application is before the Commission, that that is somehow dispositive of an application adversely to the applicant.
PN506
The first point I need to make, Commissioner, is this, and that is that my friend misapprehends the concept of pattern bargaining in the context of industrial action under Part 3‑1 of the Fair Work Act. Pattern bargaining is relevant only when an applicant or a bargaining representative moves to engage in protected industrial action, that is, employee claim action for the purpose of section 409 of the Act, and section 409(4) determines that industrial action won't be protected action in the event that the bargaining representative is engaging in pattern bargaining. That is the sole relevance of the concept of pattern bargaining under the scheme of the Act set up by Part 3‑3 of the Act. It is only at the point when the CFMEU, by way of example, serves a notice on P & D Rigging under section 414 that we are going to engage in these specific types of industrial action on these particular days that the question of pattern bargaining comes into play.
PN507
In the event that we are engaging in pattern bargaining then, then we face a section 418 order; we face a potential injunctory proceeding in the Federal Court. But it is only then that pattern bargaining has any work to do. That is why the respondent's constant refrain in respect to pattern bargaining is just entirely misplaced. It misunderstands the place of pattern bargaining in the Act, and what it seeks to do, or what it misunderstands, is that the former Act, that is, the Work Choices, amended version of the Workplace Relations Act, provided that no protected action ballot could be issued unless the Commission was satisfied the applicant was not engaged in pattern bargaining. That was section 461 of Work Choices. The Fair Work Act specifically eliminated the requirement that an applicant not be engaged in pattern bargaining in the context of the Commission making a determination about whether or not an applicant was genuinely trying to reach agreement.
PN508
If I can just give you a reference, Commissioner, to that in the Full Bench decision of Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, which I'll come to in more detail later. At paragraphs 66 to 67, there the Full Bench extract section 461 of the Workplace Relations Act, and it is in the terms that I outlined to you previously that the Commission could not grant an application for a ballot order and must not grant one unless it is satisfied amongst other things that the applicant has not engaged in pattern bargaining. That limitation, that prohibition, does not exist under the current Act, and as the Full Bench quite concisely point out at paragraph 67 it's simply not there. It's not there in the current Act. The constant recitation that the CFMEU's engaged in pattern bargaining in terms of the general sweeping statements that Mr Bradford made from the witness box today do not give the respondent any (indistinct) in those circumstances.
PN509
The relevant question - the sole relevant question for the Commission - is whether you are satisfied that the union is genuinely trying to reach agreement. That is a concept that you are well familiar with, Commissioner, but given what is put against us today it's worth outlining or recalling what exactly is bound up in that concept, and it was definitively expounded in the Esso case, which I have provided a copy of to you, Commissioner, and it is summarised at paragraph 57 of that case where the Full Bench make the point that:
PN510
Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is a question of fact to be decided having regard to all of the facts and circumstances of the particular case.
PN511
And they go on to say that, "the adoption" - this is at paragraph 58 - "of a decision rule or principle" - and in this case they're talking about the inclusion of non‑permitted matters in proposed enterprise agreements, but in my submission the reasoning applies equally in respect to recitations about pattern bargaining, that:
PN512
The adoption of a decision rule or principle ... would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision.
PN513
My submission to you, Commissioner, is there's no decision rule that just because a bargaining representative is engaged in pattern bargaining they're not genuinely trying to reach agreement. That is specifically what Esso counts as against, and that is unfortunately where my friend's case falls down, because merely asserting, or even establishing - we say there certainly hasn't been the establishment of pattern bargaining on the part of the CFMEU - is not in any way determinative of this application adversely to us. In respect to pattern bargaining itself - - -
PN514
THE COMMISSIONER: There's a difference between what the Full Bench says in relation to pattern bargaining in that context that - - -
PN515
MR BONCARDO: Yes.
PN516
THE COMMISSIONER: Just because there is pattern bargaining doesn't mean that the party engaging in pattern bargaining is not genuinely trying to reach agreement.
PN517
MR BONCARDO: Yes.
PN518
THE COMMISSIONER: That's a matter of logic of saying it doesn't automatically lead to it.
PN519
MR BONCARDO: Yes.
PN520
THE COMMISSIONER: But at 69 in the decision, it does make it clear that you have to have regard to all of the relevant facts and circumstances of the particular case, in which case pattern bargaining is a relevant factor or relevant circumstance.
PN521
MR BONCARDO: Yes.
PN522
THE COMMISSIONER: Whether it's a fact has to be established, but if it's a fact it's a relevant fact. Even where it's not a fact but it's just a broad circumstance, it could be relevant. So it's a very fine line that has to be drawn between if (a) then (b), as against if (a) is there it must be taken into account and has to be considered and weighed.
PN523
MR BONCARDO: Certainly. If this case was one, Commissioner, where the union had a document that it presented to the employer and then said no, we're not going to meet with you, we're not going to have any discussions with you because it's take it or leave it; if there had been no discussions, if there had been no communication with members, if there had been no obtaining the instructions from members as to counterproposals put by the employer, then my friend would have a reasonable case, but that is not the evidence here. The evidence - Ms Maloney's uncontroverted evidence was that the responses that the respondent has given us have been taken back to our members and they've rejected them, which they're entitled to do.
PN524
And if I can again take you back to some of the provisions of the Act concerning pattern bargaining, it is crucial to determining whether or not a bargaining representative is engaging in pattern bargaining as to whether or not they're bargaining specifically for an agreement, or whether they're just refusing to bargain generally and saying well we have a document which you have to agree to because that's what the crane company down the road is also being asked to agree to. We have here a series of meetings where the issues are being confined. Ms Maloney gives evidence that at the last substantive meeting, which she summarises in one of her emails, the issues in dispute really are the eight‑hour minimum engagement for casuals, wage increases - the parties aren't that far apart - over here we've got 3 per cent, over here we've got 4 per cent, the Incolink contributions, and the phrasing of some of the clauses in respect to the former code.
PN525
That is in my submission evidence, and compelling evidence, of a union that has sat down with an employer and narrowed the issues in dispute and bargained with that employer as an individual. Just because we haven't moved from what our members instructed us to put on 27 June is neither here nor there. We're entitled to not move - one of the core concepts of bargaining under the Act, that a bargaining representative does not need to make compromises. The case against us is you haven't compromised, therefore you must be engaged in pattern bargaining, therefore you're not genuinely trying to reach agreement. The first premise of that argument is just wrong, because the Act doesn't mandate compromise; it doesn't mandate a bargaining representative moving from its position, and Ms Maloney gave evidence that in her view perhaps there was a compromise to be had in respect to casual engagement and the wages, and our members told us no. So it is not as if the CFMEU has gone to its members and said no, this is the document, everyone's got it, everyone has to sign it, there's going to be no deviations from it. The evidence of Ms Maloney was why don't you consider what the company's putting in respect to these two clauses so that we might be able to get a deal, and our members, from this particular single entity - - -
PN526
THE COMMISSIONER: Did your members say it, or did the organiser say the members will reject it or the members have rejected it? There's a lot of confused - - -
PN527
MR BONCARDO: The organiser was acting on the instruction of the members.
PN528
THE COMMISSIONER: A lot of this is second‑hand.
PN529
MR BONCARDO: Certainly, as is a lot of the respondent's evidence.
PN530
THE COMMISSIONER: It's not surprising.
PN531
MR BONCARDO: No.
PN532
THE COMMISSIONER: But it makes life very difficult for the Commission.
PN533
MR BONCARDO: It does, yes.
PN534
THE COMMISSIONER: Because there's no evidence as to the interaction between Ms Maloney and the executive of the union, between the executive of the union and the organisers, and between the organisers and the members. There's nothing which gives me any idea as to how and when members have met. Did the members only meet as employees of one company? Did the members meet collectively as employees of a group of companies? There are numerous possible scenarios.
PN535
MR BONCARDO: Yes.
PN536
THE COMMISSIONER: Do we have a workforce that is used to dictating to the union what the union should do, or do you have a workforce that is used to parroting what the union puts to the workforce. I'm only describing these scenarios because they're ones that have come up before me in other matters where there has been evidence about a particular course of conduct before a particular employer in relation to a particular dispute.
PN537
MR BONCARDO: Yes.
PN538
THE COMMISSIONER: There's nothing before me that really goes to those sorts of issues, certainly nothing that the employer has led, but nothing that the union has put. In any event, I'm going to be limited in my decision‑making by the material that is actually before me.
PN539
MR BONCARDO: Certainly, Commissioner.
PN540
THE COMMISSIONER: Yes.
PN541
MR BONCARDO: That's what I have to live with in the material before you, but I can draw your attention specifically to paragraph 11 of Ms Maloney's statement, where she gives evidence that the CFMEU's taken the proposals of the respondent back to its members and that our instructions are that those proposals are to be rejected, and they have been rejected by our members.
PN542
THE COMMISSIONER: Yes, but that's in that form, but when she was questioned on that, it's very clear that Ms Maloney didn't run the meetings of the members.
PN543
MR BONCARDO: No, she didn't.
PN544
THE COMMISSIONER: And she's relying upon the information that she's received from the organiser who did have the interaction with the members.
PN545
MR BONCARDO: Yes, quite.
PN546
THE COMMISSIONER: And it's not even clear that the organiser had meetings with the members - it might have been collective; he could have had meetings with the members - it could have been one‑on‑one, he could have had meetings with the members that were by telephone or by any other means. There is an inherent level of vagueness around it. I know what the end result is.
PN547
MR BONCARDO: Yes.
PN548
THE COMMISSIONER: The position that's been put to me is these decisions are decisions endorsed or made or instructions that come up from the membership. So I understand the end. I have no idea how we got there.
PN549
MR BONCARDO: Certainly. I appreciate that, Commissioner. My friend's case also, at least in written submissions - and it's not entirely clear as to whether or not this case will be maintained - makes some very broad, general, lofty allegations about good faith bargaining, and that issue was canvassed in the Esso decision, and it was also canvassed in a decision of the Australian Workers' Union in Winchester [2016] FWC 6126, which is a decision of Gostencnik DP which I provided you a copy of, Commissioner, and it's trite but it's worth recording, because it's something that's specifically put against us in the written submissions at paragraph 16 of his Honour's decision. His Honour says:
PN550
To the extent that it is suggested that there has been a failure to meet good faith bargaining requirements, it must be borne in mind that although there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. An applicant for a PABO may not meet a particular good faith bargaining requirement, but may nevertheless be genuinely trying to reach an agreement.
PN551
That's an important thing to consider when you come to deal with the submissions made by the respondent in this matter. We have had put against us, and we've had this in correspondence that was sent to us at the eleventh hour on Thursday and again on Friday, that we are not adhering to the requirements under section 228. That correspondence sent by Mr Bradford is somewhat extraordinary. Mr Bradford asserts that, amongst other things, we're refusing to meet with the respondent. He says that at the bottom of DB7: "were refusing to attend and participate in bargaining meetings." Well he hasn't asked us to attend any bargaining meetings or participate in any bargaining meetings after 2 December, so it's quite a curious thing for him to make that assertion.
PN552
He has also asserted that we've failed to respond to proposals in a timely fashion. What proposals had been put to us subsequent to the last conference before the Commission? None. He also says that we have failed to give genuine consideration to the company's proposals. What proposals hadn't we given consideration to? Ms Maloney had given extensive consideration to the assertions about the building code in the document that Mr Bradford appended to his statement, and then we're said to have failed to give reasons for our responses to the company's proposals. Well we had given those reasons, and what additional proposals was Mr Bradford talking about, because the company hadn't made any additional proposals. The company, so far as it appears from the evidence, gave the union one of its pattern agreements sometime in May and it hasn't deviated from that since.
PN553
And finally, the most outlandish one is that we'd "engaged in capricious or unfair conduct which undermines the bargaining process." That un-particularised, generalised assertion is somewhat curious in the circumstances where section 228(1)(e) refers to unfair or capricious conduct that undermines collective bargaining or freedom of association. It was a ludicrous thing for Mr Bradford to put in this letter, and the assertions made against us that we have not complied with the good faith bargaining requirements of the Act are simply more of the generalised sweeping statements that this respondent is prone to make, and the Commission cannot be satisfied, to the extent that it's relevant, that there's been any breach of the good faith bargaining obligations on the part of the union.
PN554
The letter written by Mr Bradford appeared designed to achieve one objective and that was to get us to withdraw this application today, and he seems to have decided that making un-particularised assertions - serious assertions - about the union was the means to achieve that. But in any event, it is trite that just because a bargaining representative is not meeting the good faith bargaining requirements it can still be genuinely trying to reach an agreement, but in the circumstances of this case no good faith bargaining application has ever been made in respect to the CFMEU, and in any event we have met with the respondent and we have responded to all of their proposals, and that is conduct indicative of a preparedness to reach agreement and an authentic, genuine approach to reaching agreement.
PN555
He's also put against us that we haven't changed our proposal from 27 June. The case of the respondent seems to be somewhat of a moveable feast on this in that they think that there's - or they say that there's another pattern agreement out there and that other companies are signing it. Well that's quite illustrative of the fact that there is no pattern bargaining going on at this point in time because this other agreement that my friend's going to tell you all about in her supplementary material is not the agreement that the union is seeking to make with this company.
PN556
The agreement that the union is seeking to make with this company is the agreement that was sent on 27 June this year, and that agreement, on the evidence, on Mr Bradford's own evidence, is materially different from this new second agreement that according to the respondent the union is now seeking to make with everyone else - with all the other participants in the industry. That conveys, and in fact it's quite disingenuous evidence in the sense that it conveys that there can't be any pattern bargaining because the claims are different, but in any event, and again I go back to what Gostencnik DP said in Winchester's case and that is that what the CFMEU has been doing is it's been engaging in and it's been driving a hard bargain. It's entitled to do that, and his Honour reflects that at paragraph 19 in the Winchester decision, where he's there talking about the AWU, and he says:
PN557
That the AWU has rejected many of the claims advanced by Winchester or has not accepted the rationale advanced by Winchester for its various positions is not an unusual phenomena of bargaining.
PN558
Ditto this case.
PN559
It does not, however, establish that the AWU has not been or is not genuinely trying to reach an agreement. This is simply a case where the AWU is maintaining its position on many, but not all, of its claims and its position on Winchester's claims. To that extent, it might be said that the AWU is driving a hard bargain, but again that it is driving a hard bargain does not have the result that the AWU has not been, or is not genuinely try to reach an agreement.
PN560
That's this case, Commissioner. We have been driving a hard bargain. We concede that. We've been driving a hard bargain on the evidence on our members' instructions, and just because we've been doing that doesn't mean that we're not genuinely trying to reach an agreement. What else was Ms Maloney and Mr Booth doing at the conferences before the Commission? What else was Ms Maloney doing - - -
PN561
THE COMMISSIONER: When you posed a rhetorical question, you may invite the answer that just as the conduct of the union and you say it is indicative of, or it's possibly indicative of a commitment to the good faith bargaining requirements, the answer to your rhetorical question is it's also possibly indicative of surface bargaining to simply create an impression of good faith bargaining when there is every intention to do exactly the opposite. I mean, that's literally the obverse side of the same argument that you run.
PN562
MR BONCARDO: Yes.
PN563
THE COMMISSIONER: I mean, unlike the Winchester matter, there's not a bunch of ammunition manufacturers in Victoria. There's literally one. There used to be a couple of others. There used to be Eley ammunition, now there's really Winchester. You've got Winchester; you don't have a group, so it's very easy to look at Winchester as a stand‑alone exercise. In the context of the matters that we're dealing with here where very clearly the respondent is talking about pattern bargaining simply because there is an industry - the mobile crane hire industry _ whether or not pattern bargaining exists, the fact that there happens to be a number of agreements being made at the same time within an industry where everyone's got basically the same type of equipment, the same type of employees and the same type of health and safety issues, all those sorts of things, is a circumstance that always has to be taken into account.
PN564
MR BONCARDO: Certainly, but it's not a dispositive circumstance, and it is certainly the case that his Honour is right in point of principle in Winchester when he says that if you engage in hard bargaining that is not at all - - -
PN565
THE COMMISSIONER: You can have six employers doing exactly the same thing and you can come up with exactly the same agreement for all the six, and it could be the most genuine form of individual bargaining and it could be pure coincidence or happenstance that everything lines up at the end. You can have six employers doing exactly the same thing and you can come up with six agreements that look nothing alike. And it could be less than genuine bargaining in every case. That's the difficulty of these sorts of matters that, as the Fill Bench said in the Esso matter, you have to have regard to all of the relevant facts and circumstances of the particular case.
PN566
MR BONCARDO: That's right, and I won't labour the point too much more, Commissioner, but those facts and circumstances are that we have disclosed the content of the agreement that we seek to make with the respondent. That's the minimum requirement that Flick J set out in JJ Richards. We've done that, did that in June. We've engaged in meetings with the respondent, we have considered their proposals, we've given them thorough responses to those proposals, and I'm cautious about asking a rhetorical question given what you've just said, Commissioner, but - - -
PN567
THE COMMISSIONER: Yes, because you'll invite an answer.
PN568
MR BONCARDO: - - - the rhetorical question is what were we doing other than attempting to reach an agreement with this company? What were we doing, other than attempting to reach an agreement?
PN569
THE COMMISSIONER: No, you might be attempting to reach an agreement, but were you genuinely trying to reach an agreement or is it simply surface bargaining on the basis that sooner or later they'll capitulate? You get an agreement - - -
PN570
MR BONCARDO: Well there's no evidence - - -
PN571
THE COMMISSIONER: No, you get an agreement, but I mean, that's the nature of the allegation that has been thrown by Mr Bradford.
PN572
MR BONCARDO: Can I remind the Commissioner of this that it was never put to Ms Maloney - that's what we were attempting to do - it was never put to Ms Maloney: oh look, you were just going through the motions when you were before the Commission on the 28th, when you were before the Commission on the 26th, when you had the phone conference on the 18th; you were just going through the motions, Ms Maloney, you had no intention of really bargaining with this respondent; all you were trying to do was dot your i's and cross your t's so you could either make this application and go on strike and force them to sign your agreement, or you assume that they'd capitulate anyway. That wasn't put to her. There's no evidence of that. All we have is the conjecture and the speculation of Mr Bradford.
PN573
THE COMMISSIONER: But what was put to her is that she was reminded that she was an officer of the court and had an obligation to the Commission.
PN574
MR BONCARDO: Certainly.
PN575
THE COMMISSIONER: And then questions flowed from that.
PN576
MR BONCARDO: They did, and none of those questions related to this ulterior or extraneous purpose - not one, because the case against us is one of an ulterior purpose. That is very clear from the written submissions, that your purpose isn't to reach agreement; it's to obtain or maintain an industry standard, and that wasn't put to Ms Maloney. It wasn't put to Ms Maloney that it was all an elaborate charade.
PN577
THE COMMISSIONER: Yes.
PN578
MR BONCARDO: Thank you, Commissioner. Commissioner, if I can deal very quickly with the code - which has certainly piqued your interest, it's piqued my interest - and make the point that Lawrence DP makes in the third case that I have provided to you, which is the case simply titled Construction, Forestry, Mining and Energy Union [2016] FWC 3732, and he makes the point at paragraph 44 - this is in respect to what was the 2013 code, and his Honour's analysis is in my submission humane to this matter. He says from the second paragraph onwards - this is in respect to an issue about permitted or non‑permitted material:
PN579
The Commission must test the claim against the Act and the accepted approach of the Commission in applying it. Whether or not a claim complies with a government procurement policy cannot affect the legality of a claim under the Act. It does not mean that the CFMEU was not and is not genuinely seeking to pursue this claim. It is a notorious fact the union movement has been opposed to and has sought actively to resist restrictions on bargaining, which are not contrary to the Act but arise from the Building Codes, for many years.
PN580
The point his Honour's making there is that just because a bargaining representative, be they a union or someone else, doesn't agree to a provision of an agreement that is compliant with a government procurement policy like the code doesn't mean they're not genuinely trying to reach an agreement, because the test for genuinely trying to reach an agreement is whether you are trying to reach an agreement under the Fair Work Act, not under the Fair Work Act plus whatever else is in the current version of the code.
PN581
THE COMMISSIONER: Yes, but just as it doesn't mean that you're not trying to reach agreement doesn't mean that you aren't genuinely trying to reach agreement, because if an employer says I want to change a position because I need it to meet a code, and a bargaining representative for employees simply says no, we'll never consider that under any circumstances because the code's irrelevant and we don't care or whatever, it could be - - -
PN582
MR BONCARDO: It could be.
PN583
THE COMMISSIONER: It could be one of the relevant facts and circumstances of the particular case which could allow me to say the applicant union is not genuinely trying to reach agreement. Equally, it could be a relevant fact or circumstance which allows me to say even with that relevant fact or circumstance, the applicant union is genuinely trying to reach agreements.
PN584
MR BONCARDO: Yes.
PN585
THE COMMISSIONER: In some respects it all fits in with the particular circumstances of the case.
PN586
MR BONCARDO: It always goes back to the particular circumstances of the case.
PN587
THE COMMISSIONER: You have to, yes.
PN588
MR BONCARDO: I just say two things in respect to what just fell from you, Commissioner. The first is that the question is always: is the bargaining representative genuinely trying to reach an agreement under the Act, that is, the Fair Work Act. That's always the question, and any deflection from that is an invitation into error.
PN589
THE COMMISSIONER: But how you do it - - -
PN590
MR BONCARDO: The second point is that the evidence as it stands is that the CFMEU was not willing to countenance an agreement in terms of a thought bubble, I think as you described it, Commissioner, the 2014 code, that it wasn't the law of the land, and Commissioner Roe's described it as not being a law of the land in his Kane Constructions decision, and the Full Bench described it as not being a law of the land in the Viridian decision - both of those are agreement approval decisions. The CFMEU - - -
PN591
THE COMMISSIONER: But see, now it is a legislative instrument.
PN592
MR BONCARDO: Something is a legislative instrument. It's not the 2014 code.
PN593
THE COMMISSIONER: No, it's the 2016 code.
PN594
MR BONCARDO: That's right, and Ms Maloney has offered to meet to discuss the ongoing conduct in the negotiations and no doubt the compliance or lack of compliance of the employer's pattern agreement with the code, and of the union's proposed agreement communicated on 27 June with the code will be an issue that will be discussed. But it has not ever been the case that the CFMEU has sought an agreement that did not comply with the relevant procurement policy. That's not the evidence here. It's not the evidence here at all. If I can indulge you very briefly on the code, Commissioner, which I think you have a copy of.
PN595
THE COMMISSIONER: Yes.
PN596
MR BONCARDO: And perhaps disabuse my friend's organisation in respect to at least some of the assertions made by Mr Bradford. It is simply not true and it is not the case that if an entity that becomes a code‑covered entity under the code doesn't comply with the code that they are subject to prosecution or subject to penalties. What occurs is that you are ineligible to tender for or submit an expression of interest in respect to Commonwealth government‑funded work, a very different thing, and I couldn't let Mr Bradford's assertion - I know he qualified it by saying that's what I've been told by someone else - but I can let that assertion go unchallenged. That is not the case under what is now the Building and Construction Industry (Improving Productivity) Act. It is not the case under this document here, being the legislative instrument issued by the Minister.
PN597
I have to say a couple of other things in respect to that document. Firstly, section 6 of the code defines its application, and that is that a building contract or a building industry participant, those are terms defined by the Building and Construction Industry (Improving Productivity) Act to effectively mean employers operating in the building and construction industry are required to become subject to the code from the time they submit an expression of interest tender for Commonwealth‑funded building work on or after the date the code commences, that is, on or after 2 December. There is no evidence here that on or after 2 December the respondent has tendered for Commonwealth government building work or submitted an expression of interest in respect to it.
PN598
THE COMMISSIONER: But if you go through the code it also, when it talks about the obligations, it said the entity that applies for the Commonwealth government work has to ensure that its subcontractors also comply with the code. So it's one these cascading effects which goes - - -
PN599
MR BONCARDO: It is, and I appreciate that it's a new document but this matter has been on foot for some time now and we just don't have any evidence.
PN600
THE COMMISSIONER: Yes.
PN601
MR BONCARDO: Except some broad, again generalised assertions from Mr Bradford that this document is directly relevant to this company's business. It probably is - - -
PN602
THE COMMISSIONER: But it's the same as claims made by a union. You might make claims for a - well you do, you make claims for a prospective wage increase. You don't even know if the business is going to be around in two years. You don't know if you're going to have any members there. You don't know if the employees who are currently employed are going to be there. But you still make prospective claims because within the context of bargaining it's a permitted matter, and because the agreement can have a nominal expiry date that's into the future, and then of course you will bargain over future benefits, and there is absolutely nothing wrong with an employer bargaining over future benefits to the employer.
PN603
MR BONCARDO: Nothing at all, Commissioner, but what was put against us, as I understood it, was that because we weren't budging from our position in respect to certain clauses that Mr Bradford thought may not be compliant with a thought bubble, that entailed that we weren't genuinely trying to reach an agreement.
PN604
THE COMMISSIONER: Yes. It's the common conditions element of pattern bargaining.
PN605
MR BONCARDO: Yes.
PN606
THE COMMISSIONER: You can have an agreement with us if it's the same as what we've got with everyone else. If you don't want that, we'll make you give it to us, sort of thing. I can read between the lines in the sense of what is being said. At the end of the day, what I've got to now do is to work out whether or not the material before me is sufficient - and is it subject to what I hear from the respondent - is it sufficient for me to be satisfied that you haven't been engaged in genuinely trying to reach agreement with the employer, because the test is twofold - has been and is.
PN607
MR BONCARDO: Yes.
PN608
THE COMMISSIONER: Just because you is doesn't mean you have been, and you've got to pass two hurdles.
PN609
MR BONCARDO: You've got to pass both temporal elements, Commissioner.
PN610
THE COMMISSIONER: That's right, and it's very important, so I have to look at it both in terms of past conduct and in terms of present conduct.
PN611
MR BONCARDO: Sir, the last thing I would say in respect to present conduct is you have Ms Maloney's recent correspondence, you have in court the positive evidence today that the parties hopefully will meet sometime this week. Ms Maloney offered that on Friday. The response was forthcoming today. That is indicative again of genuinely attempting to reach agreement.
PN612
THE COMMISSIONER: That's the "is."
PN613
MR BONCARDO: Sorry, that he is available?
PN614
THE COMMISSIONER: That's the "is" part.
PN615
MR BONCARDO: Yes, that's the "is" part, and the "has" part is set out in Ms Maloney's statement.
PN616
THE COMMISSIONER: Yes.
PN617
MR BONCARDO: In respect to the alleged ambiguity in some of the questions, in my submission there is absolutely no ambiguity in the questions. From the industrially common‑sense perspective, everyone, particularly someone like Mr Bradford, knows exactly what a stoppage of work is, knows exactly what a strike is, and there is just no substance to this eleventh hour assertion that the questions contained in our ballot are ambiguous. They're questions made out, Commissioner, you see day‑in, day‑out - an unlimited number of one‑hour stoppages. That means a stoppage of work. That's uncontroversial. An unlimited number of 24‑hour strikes - that means a 24‑hour withdrawal of someone's labour. They're unambiguous, they are phrases and they are questions that are common in industrial parlance, and it is simply not the case that they are ambiguous in any way - in any way at all.
PN618
THE COMMISSIONER: Yes.
PN619
MR BONCARDO: In respect to the 443(5) issue, that is, whether or not there are exceptional circumstances that justify an extension of the three‑day minimum period, you don't have evidence, Commissioner, from someone who works in P & D Rigging's business. That's unusual. Mr Stockdale, who I think is the principal, was sitting in the back of the Commission. He didn't give you direct evidence of what occurs in his business and why protected industrial action's going to have an impact on that business that goes beyond what protected industrial action would ordinary have.
PN620
THE COMMISSIONER: Are you likely to concede any ground on the three versus up to seven?
PN621
MR BONCARDO: No, because it's just not made out on the material.
PN622
THE COMMISSIONER: All right.
PN623
MR BONCARDO: It's just not made out on the material. All we have is Mr Bradford, who conceded he'd never worked a day in his life in this business, saying my understanding is 'x,' and he lists a number of things that he says are in some way constitutive of exceptional circumstances. He doesn't give any details by way of example in respect to the permits that he refers to at paragraph 41. He doesn't tell you what they are; he doesn't tell you what those conditions are. He just makes again some generalised assertions in respect to permits required for road closures, power outages or other - - -
PN624
THE COMMISSIONER: Can I say on this particular issue, the Commission as currently constituted has broad knowledge of construction industry issues. Every time these disputes, whether they're 418 disputes, 739 disputes or whatever, issues come up that require me to broaden my knowledge on the construction industry, whether it's civil construction or building construction, which means that I'm not sitting here ignorant of issues relating to the use of mobile cranes.
PN625
MR BONCARDO: Yes.
PN626
THE COMMISSIONER: As a motorist, or as a cyclist, because I maybe ride my bike to work, so cyclists, I don't necessarily see too many mobile cranes that interrupt my travel, but on weekend travel around the city you know constantly that there are streets going to be blocked off on Saturdays and Sunday mornings. Why? Because that's the only time you can bring in your mobile hire crane, set it up and get a job done, and I see that constantly. I see it not only from the perspective of just being a member of the public, but I see it from the perspective that I have been involved in issues that relate to these sorts of areas of work. So I'm mindful of the fact that there are extreme health and safety considerations, there are social amenity issues, there are public safety issues around setting up, operating and then dismantling mobile cranes, in which case, there's a resonance in what Mr Bradford has said in his witness statement, which does resonate with what I would understand to be issues of significance and importance in relation to mobile hire cranes and especially in relation to stoppages of work. When I was going through this material of Mr Bradford's, I mean, what kept coming into my mind is the Norm Gallagher stopping of concrete pours. There are certain things you simply cannot do. Like a mobile crane driver who gets out of his mobile crane while he's got a job in the air would probably never work again.
PN627
MR BONCARDO: Sure.
PN628
THE COMMISSIONER: It wouldn't make any difference whether he said it was protected industrial action or not. It's such a fundamental breach of all of the safety codes that, you know, looking at it from a perspective of, is it protected action or not, is irrelevant. So I'm very conscious of all of these other issues, and it does seem to me that there is something that needs to be considered in more detail by me. I'm not satisfied that I'd have enough information before me to make an order that extended a protected action ballot notice period from three days to seven, but if I came to the view that a protected action ballot order would be appropriate I would need to seriously think in terms of doing something about is it three, four, five, six or seven days. To a large extent, this is part of the responsibility of the employer to make out its case. I know the case it's made out so far through Mr Bradford's evidence. I know where it sits in terms of my own knowledge of the industry, but there's no way I could come to a concluded view about three, four, five, six or seven. I just don't have enough. So I understand very clearly the position you're not moving from three, and you're not moving from three on the basis that you don't have an expert witness or a witness who understands the industry. You've got a person who is the bargaining representative.
PN629
MR BONCARDO: And we also, Commissioner, don't have anything in paragraphs 33 to 43 that says, besides the bald assertion that three days' notice of industrial action will not be sufficient, that gives you any specificity at all about why three days is not enough.
PN630
THE COMMISSIONER: Yes. To the extent that there's work going on at a place like Longford gas plant, if the cranes don't work no one else is going to work, in which case - and again, I say that as an observation because of other issue I've had with Longford - if there was more concrete evidence then it might very well be the case that you won't get a protected action ballot order that could have an impact upon Longford gas plant without me going to a seven‑day notice period. But at the same time, when I ride home there's construction work going on on Shepherd Bridge - they're putting in a new bike path - about time - and well done to the government who's paying for it - but I have seen mobile cranes be left there overnight. They're in a safe position, but they're just left there because they've got to be used first thing the next morning. In that sort of environment, a three‑day notice period would be more than sufficient because there are no major issues affecting public health or safety.
PN631
So both of you, I'm putting on notice that this is an issue where, to the extent that the employer's going to push it, there might need to be a re‑visiting of this issue. It's a critical issue in terms of the functioning of the Commission, and given that exceptional circumstances means out of the ordinary, unusual - - -
PN632
MR BONCARDO: Yes, it does.
PN633
THE COMMISSIONER: - - - just that sort of stuff, I can see that, you know, at the moment the employer might be ringing the alarm bells, but they're covered in cotton wool and I can't hear them very well. There might have to be better exposure of the alarm bells if you want me to move on it.
PN634
MR BONCARDO: It sounds like something I shouldn't say anything more about at this point, Commissioner.
PN635
THE COMMISSIONER: I'm not inviting you to say anymore because I would give you more than an adequate opportunity to deal with this issue if the employer wants to put something that's of substance.
PN636
MR BONCARDO: Yes.
PN637
THE COMMISSIONER: I mean, at the moment I'm not convinced that I could be satisfied as to what I should do, but I've got real worries about having a three‑day time limit if it's going to be impacted upon, say, the Longford gas plant where it could be such an insufficient time that it causes significant issues. The same as if you're doing something down at one of the oil refineries. It could be of critical concern, or cranes set up in the middle of Bourke Street. You might need to give seven days' notice so that proper arrangements can be made that it doesn't get set up in the first place before industrial action takes place. Yes, I don't know. Is there anything else you want to put?
PN638
MR BONCARDO: Commissioner, unless you have any questions, those are my oral submissions.
PN639
THE COMMISSIONER: No, you've dealt with all of the issues I wanted you to deal with. Thank you. On that note we will adjourn. I'll put in a request immediately, now that we're finished, for urgent - or as urgent as we can get it, which will be three days - you're on fairly clear notice, Ms Mansini, that there's a number of issues which you're going to have to address. To the extent that - let's go backwards, start off with that last issue - if you are going to be pressing an argument in relation to a specific timeframe, are you going to be pressing the argument in relation to every particular aspect of protected action ballot, in other words every possible site?
PN640
MS MANSINI: I can take instructions about that. There may be a way to confine it to some types of action and not others.
PN641
THE COMMISSIONER: Yes. What I'm suggesting you do is get those instructions if you can as soon as possible, and even before you put in your written submissions communicate them with the union, because I have had other matters in the past where when we get to the stage of actually issuing the formal order the parties will consent. They'll say well we'll give you five days on this but we want three days on that.
PN642
MS MANSINI: Likewise, it's quite common that we should be able to work that out.
PN643
THE COMMISSIONER: Yes, but at the moment it's up in the air, and because of the tight timeframes I think that there's real value in you looking at that issue first, because that's one that the union can think about, and then your general issue, which is I shouldn't issue the order in any event, is just going to be the major effort that you put in in terms of putting in a written submission. If it's going to be done by the 30th - by close of business on the Friday of next week, a decision gets issued - that means that you have to have material filed - it's going to have to be no later than early on the Thursday, because someone from the union has to have the opportunity of being able to respond to it, and I don't expect that responses are going to necessarily be long or difficult, because I might not even get a response at all. What is the practical timeframe for the union - how much of that Thursday would you want to consider what has been put in by the - no, just sit down.
PN644
MR BONCARDO: Sorry, Commissioner.
PN645
THE COMMISSIONER: What's practical?
PN646
MR BONCARDO: If I get something by 10 o'clock in the morning, I will have something back to you by no later than 4 o'clock.
PN647
THE COMMISSIONER: Fine. Then it's going to be 10 o'clock on Thursday.
PN648
MS MANSINI: And if it can possibly be earlier, we'll submit it earlier.
PN649
THE COMMISSIONER: Yes, it's no later than 10 o'clock on the Thursday.
PN650
MS MANSINI: Yes.
PN651
THE COMMISSIONER: I'll issue formal directions on that basis, because I'll make certain that everyone knows that that's what is going to happen. By no later than 10 o'clock on the Thursday the employer will put any further response material it wants to the substantive application, and by no later than close of business on the Thursday the union can put in any reply, and then I will issue a decision on the Friday.
PN652
MR BONCARDO: If the Commission pleases.
PN653
THE COMMISSIONER: You're mucking up my winding down, getting ready for a holiday, but there's no way I can go on a holiday without this having been resolved, so it's going to have to be resolved by the close of business on the Friday. Have we done enough in terms of now managing the way forward?
PN654
MR BONCARDO: Yes.
PN655
THE COMMISSIONER: Are you happy with that, Ms Mansini?
PN656
MS MANSINI: Thank you very much for your accommodation.
PN657
THE COMMISSIONER: Thank you everyone. The Commission stands adjourned.
ADJOURNED INDEFINITELY [4.17 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
JEAN MALONEY, AFFIRMED.......................................................................... PN16
EXAMINATION-IN-CHIEF BY MR BONCARDO.......................................... PN16
EXHIBIT #A1 WITNESS STATEMENT OF JEAN MALONEY DATED 12/12/2016 PLUS SIX ANNEXURES.......................................................................................................... PN27
EXHIBIT #A2 LETTER FROM JEAN MALONEY TO MR BRADFORD DATED 16/12/2016................................................................................................................................... PN45
EXHIBIT #A3 ONE‑PAGE LETTER FROM JEAN MALONEY TO MR BRADFORD, DATED 19/12/2016.................................................................................................. PN69
CROSS-EXAMINATION BY MS MANSINI...................................................... PN81
THE WITNESS WITHDREW............................................................................ PN137
DOUGLAS ANTHONY BRADFORD, SWORN.............................................. PN143
EXAMINATION-IN-CHIEF BY MS MANSINI............................................... PN143
EXHIBIT #R1 WITNESS STATEMENT OF DOUGLAS BRADFORD COMPRISING 43 PARAGRAPHS AND 11 ATTACHMENTS..................................................... PN156
CROSS-EXAMINATION BY MR BONCARDO............................................. PN228
RE-EXAMINATION BY MS MANSINI........................................................... PN374
THE WITNESS WITHDREW............................................................................ PN445
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